THOMAS W. KELTY, Chief Counsel,
Illinois Municipal League

"NOTHING ENDURES BUT CHANGE"

The title of this month's article reflects the sentiments of the philosopher Heraclitus expressed approximately 2300 years ago. This statement remains true and is illustrated by a look back at the previous decade in Illinois municipal law.

As the curtain goes up on the 1990's it is probably worthwhile to take a look back at legal activity in the Illinois municipal arena to remind us that Heraclitus was right: "Nothing Endures But Change."

1980: When this decade began, Robert W. McCaw, the Mayor of Rockford, Illinois was the President of the Illinois Municipal League and the Comments article for January discussed Public Act 81-0212 which raised the minimum age of consumption of alcoholic beverages back to 21. Prior to that date, 18 to 20 year olds had been permitted to buy certain alcoholic beverages in Illinois. At the end of the decade, numerous elected officials, interest groups and concerned citizens across the State were fighting the ravages of drunk driving and continuing a fight for responsible consumption of alcohol that began with the effective date of this Act in 1980.

The Illinois Supreme Court decided the case of People ex rel City of Canton v. Crouch, 79 Ill.2d 356, upholding the constitutionality of Tax Increment Financing. This new and novel concept was the subject of litigation to determine whether or not Illinois municipalities could use TIF for economic development purposes in their communities.

The United States Supreme Court decided the case of Agins v. City of Tiburon, 447 U.S. 255, the case that was the forerunner of the decisions in First Evangelical Lutheran Church v. City of Los Angeles, 482 U.S. 304, and Nolan v. California Coastal Commission, 482 U.S. 304, which solidified the concept of inverse condemnation in the entitlement of citizens to payment for certain regulatory takings by units of government.

1981: In January of 1981, a decision of the Illinois Supreme Court construing the Open Meetings Act was the topic of discussion in the Comments article. In People ex rel Difanis v. Barr, 83 Ill.2d 191, the Illinois Supreme Court construed the Open Meetings Act to find a violation by Urbana city council members. As the decade continued, municipal officials and practicing attorneys continued to be perplexed by the provisions of the Open Meetings Act. Throughout the decade, litigation continued over the provisions of the Act and alleged violations by municipalities and other public bodies of the Act.

In July of 1981, the Truth in Taxation Act became effective. By October of that year, the Attorney General had issued his first opinion on the application and construction of the Act. As the 1980 decade closes, difficulties are still faced by municipal attorneys in attempting to apply the provisions of this law.

1982: The February Comments article discussed the case of Community Communications Company, Inc. v. City of Boulder, 455 U.S. 40. The Boulder case expanded municipal antitrust liability. This expansion by Boulder was reversed in the case of Town of Hallie v. City of Eau Claire, 471 U.S. 34, later in the decade.

Later that year, the first of many articles that appeared through the decade regarding cable T.V. was published. The article commented upon two pieces of pending legislation in the United States Congress which

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would restrict the authority of municipalities to regulate certain aspects of the cable T.V. industry in its local operation.

1983: In that year, discussions regarding cable television, antitrust and home rule powers continued to develop those areas of the law. 1983 saw the Seventh Circuit Court of Appeals issue its opinion in the Town of Hallie case and the discussions of Congress leading to the Cable Communications Policy Act of 1984 continued.

1984: In that year, Congress adopted the first of its volume cap limitations on the issuance of municipal bonds which acted to restrict the financing of certain governmental projects by municipalities. In addition, the United States Seventh Circuit Court of Appeals held the Illinois Preference to Citizens Act unenforceable in the case of W. C. M. Window v. Bernardi, 730 F.2d 486.

1985: This year brought the United States Supreme Court's decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528. The Garcia decision required all state and local governments to comply with the provisions of the Fair Labor Standards Act. Congress responded to the Garcia decision by passing the Fair Labor Standards Amendments of 1985 which blunted some of the effect of the Garcia decision, however, the payment of overtime to municipal employees continues to have significant financial and operational impact on units of local government in Illinois and throughout the United States.

1985 also brought the decision of the United States Supreme Court in Town of Hallie v. City of Eau Claire.

Hallie further expanded on the Court's previous ruling in Boulder and held that statutory authorization for activities by a municipal unit of government was sufficient to meet the state supervision requirement of Boulder in the state action exemption to antitrust law first announced in Parker v. Brown, 317 U.S. 341.

Later that year, the Illinois Legislature responded to the Hallie decision by the passage of an act to permit Illinois municipalities full latitude in their antitrust immunity for statutorily authorized activities.

1986: The United States Supreme Court continued its activity in municipal law with its decision in City of Renton v. Playtime Theaters, 475 U.S. 41. The Renton decision upheld zoning regulations of the City of Renton that prescribed the location of certain adult uses within particular zones enumerated by the zoning ordinance.

In Copley Press v. City of Springfield, 143 Ill.App.3d 370, the Fourth District Appellate Court first interpreted the Illinois Freedom of Information Act which had become effective in 1984. In that case, Springfield withstood a challenge to its decision to withhold certain records pertaining to liquor licensees from a member of the press. This decision began the process of interpreting IFOIA.

The major legal drama of the year occurred in the Illinois Legislature. 1986 was the year of tort reform in Illinois. The adoption of Senate Bill 1200 (Public Act 84-1431) substantially revised the Tort Immunity Act in Illinois and provided municipalities with relief from the "liability insurance crisis," In addition, substantial revisions were made to the Tort Immunity Act to expand certain immunities and defenses of Illinois units of government and to eliminate the payment of punitive damages by those entities.

1987: The January Comments article discussed a problem that has continued to burgeon in the public work place and in all segments of our society. As the decade closes, the drug problem is no less severe, however, inroads have been made by public employers in work place drug testing and President Bush has initiated a war on drugs.

1987 also brought continued discussions of the cable television industry and the inability of units of local government to regulate their activities. By this year, the full effects of the Cable Communications Policy Act had become apparent to units of local government: the

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frustration of attempting to reconcile the inability to regulate CATV with citizens complaints regarding cable television rates and services had begun.

1988: This was another year of significant activity by the United States Supreme Court in areas of municipal concern.

First, the United States Supreme Court issued its opinion in State of South Carolina v. Baker, 485 U.S. 505. This case held that there was not a constitutional right for states and their political subdivisions to issue tax exempt debt. The effect of this decision was to permit stronger regulation by the Congress, through the Internal Revenue Code, of local governments ability to issue bonds for a particular purpose.

Second, in Schultz v. Frisby, 877 F.2d 6, the United States Supreme Court permitted the banning of picketing in residential areas. Although the background for this decision came from abortion rights protesting, the effect on municipalities was to permit control of picketing activities in residential neighborhoods.

1989: Comments articles in 1989 reflected a wide variety of concerns. Bidding ethics, affirmative action, asbestos liability and drug control were themes of interest to local officials that were discussed during the past year.

Oddly, though, Comments articles in the 1980's ended with a discussion of the subject with which they began: alcohol use and abuse. Throughout the decade, a wide variety of subjects of interest and currency occurred in the legislative and judicial bodies of the State and the United States that directly affect Illinois municipalities. Some of the changes brought by this action have been slow and incremental, others have been sweeping and represent significant departures from prior positions. Cable television regulation, antitrust immunity, tort immunity and municipal finance are all examples of areas where the law has undergone sweeping changes during the 1980s. Undoubtedly, this process of change will continue. And as it continues, the task of municipal officials and their attorneys takes on even more importance as they seek to cause these changes and adapt to changes that are imposed upon them. •

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