The Village of Orion filed a nuisance action against a Village resident after sending notice to the resident alleging a violation of the Village Code provisions prohibiting more than three cats on a property. The notice came after the state had charged ...


Village Can Bring Nuisance Action Without Separate Prosecution of Ordinance Violations and more...

Village Can Bring Nuisance Action Without Separate Prosecution of Ordinance Violations

The Village of Orion filed a nuisance action against a Village resident after sending notice to the resident alleging a violation of the Village Code provisions prohibiting more than three cats on a property. The notice came after the state had charged the resident with harboring more than 70 cats on her property. The Village asked the court to issue an order to abate the nuisance and require the resident to comply with the Village Code. The trial court dismissed the case, holding that the Village did not have authority to bring a nuisance lawsuit without having cited the resident in a separate proceeding.

The Village appealed, and the appellate court ruled in its favor, finding that a municipality does have the authority to bring a lawsuit to abate a nuisance situation without having to prosecute the ordinance violations in a separate proceeding.  Village of Orion v. Hardi. The case was then sent back to the trial court for further proceedings on the Village's nuisance claims.

One Year Statute of Limitations Bars Challenge to Annexation

In Coldwater v. Village of Elwood, an appellate court upheld the dismissal of a lawsuit against the Village claiming that the Village's annexation of property was invalid because the legal description included with the annexation ordinance was incorrect. The plaintiff had filed a lawsuit to nullify a corrected version of the annexation ordinance. The Village filed a motion to dismiss, claiming the lawsuit was filed too late because it was not within the one year statute of limitations in the Illinois Municipal Code (65 ILCS 5/7-1-46). The trial court agreed, and dismissed the case, but certified a question to the appellate court.

The certified question brought to the appellate court was whether section 7-1-46 bars the parties to an annexation from correcting errors in the legal description of an annexed property after the one year statute of limitations has expired. The appellate court said yes, meaning that the plaintiffs were barred from challenging the validity of the annexation after the one year had expired. 

Bill Would Authorize Library Districts to Impose Cannabis Tax

The recent legalization of recreational cannabis in Illinois was tied to the imposition of a number of new taxes imposed at the state, county, and municipal level. A recent bill, if passed, would also authorize library districts to impose their own 1% tax on the sale of recreational cannabis. HB 4135.  

If a library district imposes such a tax, the bill mandates that any applicable tax imposed by the county in which the library district is located be reduced by 1% and that all municipalities in the county in which the library district is located must also reduce their cannabis tax by 1%. 

That mandatory reduction in county and municipal cannabis taxing authority is likely to raise some concerns with those governmental units that have already enacted a county or municipal cannabis tax, particularly since the proposed legislation is written so broadly as to seem to apply to all municipalities in the county in which the library district is located, without regard to where the library district is located. 

Illinois Supreme Court Upholds Settlement Agreement Disclosure under FOIA

Last month, the Illinois Supreme Court held in Rushton v. Department of Corrections, 2019 IL 124552, that a settlement agreement between a private healthcare provider who contracted with the state to provide medical services to prison inmates and the estate of an inmate who died is subject to the Freedom of Information Act.

A journalist for the Illinois Times filed a FOIA request with the Illinois Department of Corrections (DOC) seeking settlement agreements involving the death of a former inmate at Taylorville Correctional Center, including those that involved private entities who were charged with providing health care to the decedent; one being Wexford Health Sources, Inc. Wexford contracts with the DOC to provide medical care to inmates. The DOC obtained a redacted version of the agreement from Wexford, and the DOC provided it to the requester.

The journalist and the Illinois Times filed a complaint against the DOC seeking an unredacted copy of the settlement agreement. The trial court ruled in favor of Wexford, holding that the agreement was  not a public record because it was not “directly related” to the private company's provision of medical services for the DOC under Section 7(2) of FOIA. The trial court did not rule on the issue of whether any of the redactions in the agreement were proper. The requesters appealed and the appellate court reversed in their favor, finding that the agreement was a public record because it “directly related” to the governmental function that it performed for the DOC because it involved the settling of a claim arising out of its rendering of medical care. Wexford then appealed to the Illinois Supreme Court.

On appeal, the Illinois Supreme Court held that the agreement was subject to disclosure under FOIA. First, the Court found that Section 2.20 of FOIA expressly provides for the release of settlement agreements involving private entities. The Court reasoned that the legislature’s enactment of Section 2.20 was intended as a clarification for public bodies that settlement agreements are public records subject to disclosure. Next, the Court analyzed whether Wexford had contracted with the DOC to perform a governmental function on its behalf and, if so, whether the requested settlement agreement directly related to that governmental function. The Court determined that since the State has a constitutional and statutory duty to provide healthcare to inmates, and that the DOC contracted with Wexford to perform this governmental function on its behalf, the Court found that the settlement agreement “directly related” to the performance of the governmental function of rendering medical care to inmates, such as the decedent, and is subject to disclosure under Section 7(2) of FOIA. In other words, Wexford “stood in the shoes of the DOC” when it rendered medical care to the decedent.

This case provides guidance to local governments and its private contractors that perform services related to a governmental function, that settlement agreements may not be shielded from public inspection because of the presumption of openness under FOIA. Nonetheless, local governments should be diligent in reviewing the agreements and redacting them as necessary.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

Bill Would Require All Elected and Appointed Officials to Wear Body Cameras

There are inevitably a few bills introduced in the Illinois legislature each year that are bound to raise an eyebrow or two. Last week, HB 4065 was introduced in the Illinois House that would create the Public Official Body Camera Act. 

If passed, the new law would require all public officials (elected and appointed) in the state to wear body cameras whenever officials are engaged in official duties. The recordings would be exempt from FOIA but would not be exempt from use in legislative, administrative, or other proceedings. Incredibly, the bill contains no exceptions to when the camera should be turned off, so presumably the camera would be rolling even during closed session meetings, when officials consult with attorneys, when officials are dealing with sensitive personnel matters, and in other circumstances where privacy or confidentiality interests might be present. Oddly, the bill gives the State Board of Elections the jurisdiction to adopt rules in furtherance of the new requirements. The bill says nothing about funding for this state mandate that would require the state and all other units of government in the state to outfit all elected and appointed officials with body cameras.

We'll keep you posted on this proposed legislation but have a feeling this bill may not go very further.