Prosser Rule Applied to City Council's Appointment of Clerk and more...

Prosser Rule Applied to City Council's Appointment of Clerk

It isn't often that the Illinois courts apply the "Prosser Rule" to the vote of a city council, but an Illinois Appellate Court did just that recently in Christian v. Buscher.

In 2025, a city council held a special meeting to vote on the appointment of a person to fill a vacant city clerk position. The city council (made up of 10 elected aldermen and the mayor) voted five "yea," three "nay," and two "present" on the motion to approve an ordinance to appoint a sitting alderman to fill the clerk position. The mayor (who did not vote) announced that the measure passed. The alderman who was being appointed voted in favor of his appointment.

A citizen filed a lawsuit to challenge the vote on the appointment, arguing that the measure did not receive the necessary six votes to approve an ordinance. Specifically, the citizen argued that the two "present" votes should not have been counted towards the majority who did vote in favor of the measure. The citizen also argued that the favorable vote of the alderman who was being appointed should not have been counted. The circuit court dismissed the case and it was appealed to the Appellate Court.

The Appellate Court first analyzed the Illinois Supreme Court's Prosser v. Village of Fox Lake case where the Supreme Court held that an ordinance was validly approved even though a member of the board was present but did not vote, finding that the non-vote counted towards the majority of "yea" votes. The Court explained that if a measure requires an "affirmative" vote of the majority, then "voting to 'abstain,' or to 'pass,' or voting 'present' or of refusing to vote when present at a meeting" counts as a "nay" vote. However, if a measure requires a "concurrence" vote of the majority, a vote of pass, present, abstain, or a failure to vote counts as an acquiescence or concurrence with the majority, based on the "general rule" that those members present at a meeting "must vote against a proposal in order to defeat it."

Because the city ordinances required a "concurrence of a majority" to pass an ordinance, the Court found that the ordinance being challenged was validly approved because the two "present" votes were properly counted with the "yea" votes based on the Prosser Rule. The Court also rejected the argument that the vote of the alderman being appointed should not have been counted, finding that even without his vote, the measure passed. As a result, the Appellate Court upheld the dismissal of the case challenging the appointment.

Removal of Tow Company from County Tow List Not a Due Process Violation

In Tire Town Auto, LLC v. Wood County, the Seventh Circuit Court of Appeals found no due process violation when a county removed a tow company from the county's tow list.

A Wisconsin county maintained a list of towing businesses that were available on a rotating basis to recover vehicles on public roads. After receiving complaints about one of the tow companies, the county removed it from the list and the company sued, claiming the county violated its procedural due process rights in removing it from from the tow list. The county asked the court to dismiss the lawsuit, arguing there is no protected property interest in being listed on the county's tow list. The district court agreed and dismissed the case, and the company appealed.

The Seventh Circuit upheld the district court's ruling, finding that the tow company did not allege or identify any written or other source that would support a property interest, including a statute, regulation, or ordinance that would guarantee a business a spot on the county's tow list. As a result, the case was properly dismissed.

Quorum Forum Podcast Ep. 105: Anatomy of a Redevelopment Agreement (Part 2)

Ancel Glink's Quorum Forum Podcast has released a new episode, Episode 105: Anatomy of a Redevelopment Agreement (Part 2).

In this episode, we return to the Southland Development Authority’s “TIF Talk” training series for a deep dive into the financial and practical implementation of economic development deals. Hosted by the Village of Hazel Crest, this session features Ancel Glink’s David Silverman, Michio Murakishi (Meech Group), and Terri Cox (Matanky Realty Group).

Building on the structural overview provided in Quorum Forum 97: Anatomy of a Redevelopment Agreement, the panel explores how municipalities can use RDAs to bridge financial gaps and ensure projects are feasible for developers while protecting the public interest.

Highlights:

The Math of Incentives: Understanding Internal Rate of Return (IRR), yield on cost, and how consultants use gap analysis to size incentives.
The “But For” Test: A look at the legal and financial necessity of incentives, and the idea that a project would not happen “but for” the public assistance.
Net Public Benefit: How to measure the “dividend” of a public investment through tax base growth, job creation, and revitalized storefronts.
Case Studies from the Trenches: Terri Cox shares lessons from the Bishop Classic project in Chicago and a $5 million car wash development on Dixie Highway in Harvey.
Performance-Based Protections: The importance of clawback provisions, reimbursement schedules, and why the public sector should generally avoid being a landlord.

Court Finds Health Reimbursement Benefits Not Covered by PSEBA

In a recent decision, the Illinois Appellate Court upheld a fire protection district's (District) denial of certain supplemental benefits to a disabled firefighter who was receiving benefits under the Public Safety Employee Benefits Act (PSEBA). Carter v. Fox Lake Fire Protection District.

A firefighter was injured in the line of duty and applied for and received a duty disability pension. The firefighter was also eligible for, and received, benefits under PSEBA, which provides health insurance benefits to public safety officers who suffer a catastrophic injury in the line of duty. For six years, the District provided the disabled firefighter with the PSEBA health benefits, and also covered the firefighter under the District's vision, dental, and life insurance plans as well as the District's health reimbursement benefits that provided reimbursement for certain deductibles. In 2023, however, the District notified the firefighter that PSEBA does not include the vision, dental, and life insurance benefits or the health reimbursement benefits and stopped coverage for those benefits. The firefighter sued, and the circuit court ruled in favor of the District. The firefighter appealed the denial of the health reimbursement benefits to the Appellate Court (he did not challenge the denial of vision, dental, and life insurance benefits).

The Appellate Court examined the language of PSEBA and determined that the statute was clear that PSEBA benefits cover the premium for the health insurance plan, but expressly excludes "supplemental benefits that are not part of the basic group health insurance plan." The Court determined that the health reimbursement benefits were supplemental and not part of the District's health insurance plan, so they were not covered under PSEBA.

Status of the Digital Library Protection Act

As many of our library readers already know, the Illinois House has passed House Bill 5236, the Digital Library Protection Act. If approved by the Illinois Senate, and signed by the Governor, this new law would prevent Illinois libraries (and any library consortium acting on behalf of a library) from entering into contracts with publishers regarding "electronic literary materials" (defined as e-books and digital audio books) that would:

restrict a library from licensing literary materials from publishers;
restrict a library from employing technological protection measures necessary to loan e-books and digital audiobooks;
restrict a library from making preservation copies of e-books and digital audiobooks;
restrict a library from loaning e-books and digital audiobooks through interlibrary loans;
restrict a library from loaning e-books and digital audiobooks to borrowers;
restrict a library from determining loan periods for licensed e-books and digital audiobooks;
require a library to obtain a license for e-books and digital audiobooks at a price greater than what is charged to the public for the same item;
restrict the number of licenses for e-books and digital audiobooks that the library can acquire after the item is available to the public;
require the library to pay a cost-per-circulation fee for loan e-books and digital audiobooks, unless the fee is substantially lower in aggregate to the cost of purchasing the item outright;
restrict the number of times the library can loan an e-book or digital audiobook over the course of the contract if the contract imposes a time-based limitation on the duration of the license;
restrict or limit the library's ability to virtually recite text or display artwork to library patrons that would be more restrictive than what is recited or displayed at the library facility;
restrict the library from disclosing the terms of the contract to any other Illinois library; and
require, coerce, or enable the library to violate the Library Records Confidentiality Act.

If passed, the bill would also prohibit any provision in a contract that would require a different state law to be applied in any dispute. Note that the bill would not apply to any existing contracts with publishers.

The bill has been sent to the Illinois Senate for its consideration.

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