In the case of Daniel Maloney, Appellant v. Elmhurst Park District, Appellee, docket number 42816 — Agenda 57 — September, 1970, the Supreme Court of Illinois upheld the constitutionality of one of the more controversial provisions contained in the Local Governmental and Governmental Employees Tort Immunity Act (ch. 85, Ill. Rev. Stat. 1969, sec. 3-106). That section provides:

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground or open area for recreational purposes unless such local entity or public employee is guilty of willful and wanton negligence proximately causing such injury."

In the Elmhurst Park District case, a complaint was filed alleging that while Plaintiff was playing on an artificial hill in Elmhurst Park, he fell and was severely injured. The negligence alleged was that Defendant negligently allowed the hill to be and remain in a dangerous condition in that (a) no fencing was provided around the hill, (b) the area was ungraded, and (c) that rocks and other debris were allowed to remain thereon. The complaint contained no willful and wanton count. Defendant filed an answer to the complaint and subsequently filed a motion for judgment on the pleadings on the ground that no willful or wanton negligence was alleged. After filing a motion to amend the complaint to permit the allegation of willful and wanton negligence and which motion was allowed by the Court, Plaintiff asked that the order allowing such amendment be vacated and filed a motion contesting the constitutionality of Section 3-106. The trial court thereupon vacated the order allowing amendment and entered judgment on the pleadings in favor of the Defendant and against the Plaintiff.

In his brief on appeal, Plaintiff relied principally upon the opinion rendered in the case of Harvey v. Clyde Park District, (32 Ill. 2d 60) and argued that Section 3-106 was in violation of Section 22 of Article IV of the Illinois constitution as being special legislation. In writing the opinion of the Court, Mr. Justice Culbertson said:

"The statute in question here applies equally to all local governmental entities, and comes into operation only where liability of a particular governmental entity is sought to be predicated upon the existence of a condition of public property maintained by it and intended or permitted to be used as a park, playground or open area for recreational purposes. By enactment of this statute the General Assembly has encouraged the development of and maintenance of parks, playgrounds, and other open areas to be used for recreational purposes in a manner which is in no way arbitrary, capricious or unreasonable . . . We hold that the statute in question, in the context in which it is here attacked, is valid. Plaintiff's complaint being based upon charges of ordinary negligence, the circuit court properly entered judgment on the pleadings in favor of Defendant, and the judgment must thus be, and is, affirmed."

By its decision in the Elmhurst Park District case therefore the Supreme Court has settled the question as to the constitutionality of this heretofore controversial provision.

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New Procedure by Department of Local Government Affairs to Reimburse Park Districts for Loss of Tax Revenues

The Department of Local Government Affairs has announced that it has changed its proposed procedure which will permit park districts to recover at least a portion of the tax revenues lost as a result of the exemption of certain items of personal property from taxation. The Department had originally planned to require park districts and other special taxing districts which had suffered such losses to file an application for a state grant at such time as it had received its notice of assessed valuation and was able to ascertain the amount of said loss. The new procedure which will be followed by the Department, however, will eliminate the necessity of the individual park district or other special district filing such application.

Under the present procedure to be followed by the Department, the Department will send notice to each special taxing district at the earliest possible date (which is contemplated to be around the first part of April) setting forth the calculated amount of the loss and advising the district as to the amount of the grant which the Department will allow. In the event the computation made by the district is at variance with that of the Department, the district will then have an opportunity to file an appeal.

One of the problems being considered by the Department at the present time is that of the course to be followed in the event the funds appropriated are insufficient to make full reimbursement for the actual losses suffered by each special taxing district. Two courses are under consideration, (1) request an additional appropriation from the General Assembly to make up the difference so that full reimbursement can be made and (2) the distribution of the available funds previously appropriated upon a proportionate share basis. Under the circumstances therefore, each park district should realize that it is possible that it will not be reimbursed in full for its loss of revenues suffered as a result of these personal property exemptions.

NOTE : The Legislative Committee of the Association is considering and will have introduced in the present session bills which will, if passed, alleviate the losses contemplated. Further information concerning such legislation will be furnished at such time as these bills have been introduced.

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Robert A. Stuart is Legislative Counsel for the Illinois Association of Park Districts.

Illinois Parks and Recreation 6 March/April, 1971

LEGAL...

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Appropriation of Recreational Program Fund Revenues

As a result of the amendment of Article V, Section 2 of The Park District Code by the Seventy-Sixth General Assembly so as to permit all districts to levy a .075 percent recreation tax without referendum, numerous questions have arisen with respect to the legitimate purposes for which such revenues may be used. Section 5-2 provides that:

"Any park district may levy and collect annually a tax of not to exceed .075% of the value, as equalized or assessed by the Department of Revenue, of all taxable property in such district for the purpose of planning, establishing and maintaining recreational programs, such programs to include playgrounds, community recreational centers, . . .
"The proceeds of the tax authorized by this section shall be paid to the treasurer of said district and kept in a fund to be known as the recreational program fund. Such funds shall be used for the planning, establishing and maintaining recreational programs carried on by such district."

This provision of The Park District Code has never been subjected to an interpretive decision in the Supreme Court of Illinois. It would appear clearly that the said funds could be used without question for services and salaries incurred in connection with "planning, establishing and maintaining recreational programs", as well as for the purpose of purchasing materials and supplies used in the conduct of the said recreational programs. Whether or not capital expenditures in site development and improvements could be the subject of such expenditure on the basis that they were required to establish such programs may well be subject to further judicial interpretation.

It would appear that any expenditure which is essential to the setting up of and maintaining a recreational program can be sustained as a proper expenditure within the meaning of the language of the section. However, any question of the propriety of such an expenditure from the fund would be subject to a judicial determination of the said expenditure upon the basis of the particular facts involved in each case. It would appear that any expenditure authorized on the basis of the sound discretion of the Board would in all probability be sustained.

Illinois Parks and Recreation 20 March/April, 1971