Quick Takes on Illinois Supreme Court Opinions Issued Thursday, May 23
The Illinois Supreme Court issued three opinions on Thursday, May 23. The ISBA's panel of leading civil attorneys reviewed the opinions and provided summaries. In LMP Services, Inc. v. City of Chicago, the court ruled that Chicago’s food truck regulations are constitutional. In Roberts v. Board of Trustees of Community College District No. 508, the court dismissed retaliatory discharge and whistleblower claims brought by a former Malcolm X College employee against City Colleges of Chicago. In Doe v. Coe, the court weighed in on the elements of torts of negligent and willful and wanton hiring, retention, and supervision.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
You may think of this opinion the next time you walk through the City of Chicago with an empty stomach. The Illinois Supreme Court upheld the validity of two Chicago municipal code provisions governing food trucks. Plaintiff LMP Services, whose owner operates “Cupcakes for Courage,” sued the City in the circuit court on the basis that two restrictions affecting food trucks violated the Illinois Constitution. After losing on cross motions for summary judgment in the circuit court and an unsuccessful appeal, LMP obtained review in the Supreme Court.
The court first addressed LMP’s argument that the “200-foot rule,” which prohibits parking a “mobile food vehicle” within 200 feet of a customer entrance to a restaurant located on the street level and applies whether the food truck is parked on private or public property. Violators face a fine of between $1,000 and $2,000 for each day that a food truck operator violates this restriction. LMP’s contention that the 200-foot rule offended substantive due process did not persuade the court. Applying the rational basis test, the Supreme Court determined that 1) the restriction served a legitimate government interest and 2) the rule bore a reasonable relationship to the city’s goal.
On the first element of the rational relationship test, the court noted that both “brick and mortar” restaurants and food trucks bring significant benefits to the city. Yet, the Supreme Court found that food trucks do not have the same long-term stabilizing effects on the neighborhoods where they are located. The court cited as examples restaurants’ payment of property taxes and contribution toward the city’s stable economic growth. As to the second aspect of the rational relationship test, the court held that the 200-foot rule is part of a reasonable regulatory scheme to further the city’s goals. The court observed that the regulations designated certain areas where food trucks may park notwithstanding the rule, a way in which the city balances the interests of food trucks with the city’s goal of advancing the stability and economic growth of its neighborhoods.
LMP fared no better with its challenge to a requirement that food trucks be equipped with a GPS device that transmits its location to a service provider when the food truck is serving the public or being serviced at a commissary and that the service providers maintain at least six months of historical location information. Under the rules pertaining to this requirement, the city requests GPS service provider information only under limited circumstances, such as to investigate a complaint of unsanitary or unsafe conditions or food at the vehicle.
The Supreme Court disagreed with LMP’s argument that the GPS provision constituted a warrantless, unconstitutional search that invades a food truck’s privacy. The court observed that food trucks generally broadcast their locations through social media to attract customers, a practice suggesting that a food truck operator has little or no expectation of privacy as to the truck’s location. Even assuming that the GPS requirement constituted a warrantless search, in the court’s view, the nature of a food service business, which requires strict regulation, would justify such a search. The court reasoned that the city has a substantial interest in knowing a food truck’s location and having access to information regarding a food truck’s movements to facilitate inspections and have a reliable way to locate a food truck in the event of a public emergency or serious health issue.
By Joanne R. Driscoll, Forde Law Offices LLP
Examining the sufficiency of allegations in support of claims for retaliatory discharge and violation of section 20 of the Whistleblower Act (740 ILCS 174/20 (West 2014)), the supreme court unanimously (Justice Neville took no part) affirmed the circuit court’s dismissal of both counts, reversing, in part, the appellate court’s decision that upheld the retaliatory discharge count. (Plaintiff’s third count for wrongful termination remains pending in the circuit court.)
The plaintiff, who was the director of medical programs at Malcolm X College, was terminated after he questioned the hiring of an unqualified instructor assigned to teach phlebotomy and electrocardiograms (EKG). The court’s discussion of the sufficiency of his retaliatory discharge count was limited to whether the plaintiff sufficiently alleged a discharge in violation of a clearly mandated public policy. The policy identified by the plaintiff was Title IV of the Higher Education Act of 1965 (HEA) (20 U.S.C. ch. 28, subch. IV (2012)), which required institutions of higher learning to provide students the ability to obtain the benefits of a postsecondary education through financial help from federal and state-funded programs.
The plaintiff argued that he alleged a public policy violation based upon allegations that the defendant violated the HEA or the program participant agreement required by the HEA when it hired instructors that were not qualified under standards provided by the National Accrediting Agency for Clinical Laboratory Sciences (NAACLS) and by misrepresenting the nature of defendant’s educational program and the employability of its graduates. 20 USC §§ 1094(a)(21), (c)(3)(A); 34 C.F.R. § 668.14(b)(23). The court disagreed. It found the NAACLS standards irrelevant because they were not adopted by the Secretary of the United States Department of Education and, thus, had no bearing on the defendant institution’s eligibility under the HEA. The court also found that the plaintiff failed to allege any misrepresentations by the defendant about the quality of its education program or its instructors, the employability of its graduates, or the requirements to become a certified phlebotomist or EKG technician for purposes of showing a violation of the HEA and, thus, a public policy violation in support of his retaliatory discharge count.
With respect to the Whistleblower Act count, the court examined whether the plaintiff alleged a violation of section 20 of that Act, which prohibits retaliation for an employee’s refusal to participate in an activity that would violate a state or federal law, rule, or regulation. 740 ILCS 174/20 (West 2014). The plaintiff argued that the appellate court erred in requiring him to allege an employer’s request or demand that the plaintiff engage in illegal or unlawful conduct. The Supreme Court did not address this issue, holding that irrespective of whether the plaintiff alleged a refusal to participate, his complaint failed because it did not sufficiently plead that the defendant’s appointment of instructors violated a statute, rule or regulation.
By Joanne R. Driscoll, Forde Law Offices LLP
This decision provides a primer on the elements of the torts of negligent and willful and wanton hiring, retention, and supervision. The supreme court, in a unanimous decision (with Chief Justice Karmeier taking no part), resolved the conflict among appellate court panels as to whether the tort of negligent supervision, like the tort of negligent hiring, requires notice of particular unfitness or whether the two torts are distinguishable. The court held that while the tort of negligent hiring requires allegations showing that the employer knew or should have known of the employee’s particular unfitness that proximately caused the plaintiff’s injury, the tort of negligent supervision only requires allegations of general foreseeability that the injury could occur. The court noted that the torts of negligent hiring and negligent retention are identical.
Examining the allegations of the 70-page complaint brought by the plaintiff and her parents against a religious employer and pastor for the sexual abuse of the plaintiff by a youth minister, which were taken as true, the court held that the plaintiffs sufficiently pleaded negligent supervision based on allegations that the employer defendants provided adults, including the youth minister, with unsupervised access to children and failed to monitor those interactions. According to the court, it is generally foreseeable that abuse could occur under such unmonitored circumstances. Allegations that a Google search would have provided notice of the youth minister’s sexual interest in children, even if that information may not have turned up in a background check, was sufficient to meet the knowledge and particular unfitness elements for the negligent hiring claim. Negligent supervision was alleged with facts showing knowledge of the youth minister’s inappropriate physical contact in touching the buttocks of underage girls at youth group and other activities and the report of an early childhood professional to the pastor concerning the youth minister’s actions toward the plaintiff. The court cautioned that the plaintiffs will have to carry their burden of proving these claims.
In its brief discussion of the willful and wanton counts, the court determined that those counts could go forward at the pleading stage, even though they overlapped the negligence counts, because the willful and wanton counts are aggravated forms of negligence.