RECENT MUNICIPAL CASE LAW
By BETH ANNE JANICKI, Staff Attorney, Illinois Municipal League
The following is an overview of selected decisions of the Illinois Supreme Court, the Illinois Appellate Courts, and Federal Courts rendered in 1992. These cases have been summarized and, if relied upon, should be read in full.
These cases have been selected as having significant impact upon municipalities, municipal attorneys, and public officials. Please contact Beth Janicki, Staff Attorney at (217) 525-1220 if you have any questions.
I. ILLINOIS DECISIONS
A. SUPREME COURT
Meyers v. Kissner, 149 Ill.2d 1, 594 N.E.2d 336, 171 Ill.Dec. 484, (May 21, 1992). Plaintiff's farmland was damaged by erosion. This erosion was caused by levees constructed by the defendant. Plaintiff's suit was filed more than five years after the levees were constructed. The court held the five-year statute of limitations to be inapplicable because defendant's conduct was a private continuing nuisance.
Welch v. Johnson, 147 Ill.2d 40, 588 N.E.2d 1119, 167 Ill.Dee. 989, (February 19, 1992). Removal of a candidate's name from the ballot is not a permissible sanction for the candidate's filing an untrue statement of economic interests, in relationship to his candidacy, due to inadvertence on the candidate's part.
Waste Management v. Illinois Pollution Control Board, 145 Ill.2d 345, 585 N.E.2d 606, 165 Ill.Dec. 875, (November 21, 1991). The Pollution Control Board's affirmance of a village's refusal to approve a waste site, issued within 120 days as required by statute, but without an opinion, did not constitute the failure to take "final action" which would have permitted the site to have been deemed approved.
Burke v. Rothschild's Liquor Mart, Inc., 148 Ill.2d 429, 593 N.E.2d 522, 170 Ill.Dec. 633, (May 21, 1992). For purposes of comparative liability, negligence may not be compared with willful and wanton misconduct. The City of Chicago, a joint tortfeasor to whom neither contribution nor comparative negligence was available, was responsible for the entire award, even though comparative negligence was available to the other defendant.
Opyt's Amoco v. The Village of South Holland, 149 Ill.2d 265, 595 N.E.2d 1060, 172 Ill.Dec. 390, (June 25, 1992). A Sunday closing ordinance of the Village of South Holland was upheld as a reasonable means of promoting a legitimate governmental objective. The ordinance was not an arbitrary and unreasonable exercise of the municipality's police power.
f. Police Discipline
Launius v. The Board of Fire and Police Commissioners of the City of Des Plaines, Docket Nos. 72070, 72075 (Consolidated), (September 24, 1992). Launius, a police officer, was discharged for disobeying the direct command of his superior and leaving his post. The circuit court affirmed the discharge, the Appellate Court reversed. The Illinois Supreme Court reversed the Appellate Court holding that discharge was an appropriate sanction and neither unrelated to the needs of service or arbitrary.
g. Sovereign Immunity
Currie v. Lao, 148 Ill.2d 151, 592 N.E.2d 977, 170 Ill.Dec. 297, (March 19, 1992). A state trooper involved in a collision was not protected by sovereign immunity or public official's immunity as the evidence presented did not show that any duty which he breached resulted solely from his employment. Defendant was not performing a uniquely governmental function at the time of a collision between the plaintiff's vehicle and auto driven by the defendant going the wrong way on a one-way street.
h. Structural Work Act
James Harvel v. City of Johnston City, 146 Ill.2d 277, 586 N.E.2d 1217, 166 Ill.Dec. 888, (January 23, 1992). Plaintiff sued to recover damages for injuries he sustained at a construction site. Plaintiff sought recovery for his wife's alleged loss of consortium. The Appellate Court held that the spouse of an injured worker does not have a cause of action under the Structural Work Act and any common law loss of consortium claim had been waived. The Illinois Supreme Court reversed, finding that the language of Section 9 of the Structural Work Act is broad enough to include a claim for loss of consortium made by the spouse of an injured worker.
City of Chicago v. Illinois Department of Revenue, 147 Ill.2d 484, 590 N.E.2d 478, 168 Ill.Dec. 841, (March 26, 1992). Two buildings that were titled to the City were tax exempt. However, the underlying land, which was leased to the City, was titled to a private entity and was not tax exempt, even if the City had agreed to pay the taxes on the land.
j. Tort Immunity Act
Aikens v. Morris, 145 Ill.2d 273, 583 N.E.2d 487, 164 Ill.Dec. 571, (November 21, 1991). A city police officer, who was transporting a prisoner in a squad car, had no immunity from suit for ordinary negligence arising from a traffic accident.
Vesey v. Chicago Housing Authority, 145 Ill.2d 404, 583 N.E.2d 538, 164 Ill.Dec. 622, (November 21, 1991). The Chicago Housing Authority was entitled to summary judgment under the voluntary undertaking doctrine on claims arising when an unguarded steam pipe on leased premises caused injuries to a child. A municipal housing authority has no common law liability for injuries occurring on leased premises which are under tenant control.
West v. Kirkham, 147 Ill.2d 1, 588 N.E.2d 1104, 167 Ill.Dec. 974, (January 30, 1992). Plaintiff sued to recover for in juries sustained in an automobile accident. The City of Urbana, a defendant, moved for summary judgment contending that the plaintiffs claim was barred by the Tort Immunity Act. The plaintiff contended the City was negligent in failing to provide a left turn arrow, among other things. The Supreme Court held that Section 3-104 of the Act granted immunity from liability for the failure to provide a left turn arrow as part of the traffic light arrangement.
Evelyn Wojdyla v. City of Park Ridge, 148 Ill.2d 417, 592 N.E.2d 1098, 170 Ill.Dec. 418, (April 16, 1992). Plaintiff's decedent was struck by a car while crossing a highway in Park Ridge. Plaintiff alleged negligence in the placement and maintenance of street lights. The circuit court granted summary judgment to the City. Plaintiff alleged that the decedent was an intended user of the highway because his car was parked in the street and gaining access to his car required travel on the street itself. The court found the intended use of the streets was for automobile travel and not for pedestrians. This court also found that the City was not liable for a failure to erect adequate street lights under Section 3-102 of the Tort Immunity Act since the duty under the Section flows only to intended and permitted foreseeable users, and the decedent was not an intended user.
Page 24 / Illinois Municipal Review / December 1992
Press v. Code Enforcement Board of Appeals, 149 Ill.2d 281, 595 N.E.2d 1068, 172 Ill.Dec. 398, (June 25, 1992). A house with 11 tenants and two common kitchens was properly categorized as a "rooming house" under the Champaign City Safety Code, even though each tenant signed a lease for the entire house.
B. APPELLATE COURT
a. Administrative Law
Corgiat v. Police Board of the City of Chicago, First District Appellate Court, Docket No. 1-90-3587, (July 10, 1992). A Chicago police officer was discharged for refusal to report to the medical services station for a urinalysis, and subsequently failing to report to work without securing authorized leave. The police officer had requested emergency leave so that he could be admitted to the alcohol unit of a hospital. (The officer was told over the phone that his leave was denied and that he should report for urinalysis testing). The officer was discharged by the Board. The trial court found that because administrative warnings were not given, the officer should not have been discharged. This court affirmed, finding that the charges against the officer were against the manifest weight of the evidence. This case is now pending before the Illinois Supreme Court on Petition for Leave to Appeal.
b. Administrative Review
Mandeville v. Trucano, 225 Ill. App. 3d 505, 588 N.E.2d 327, 167 Ill.Dec. 686, (Fifth District, February 6, 1992). Plaintiff, a police officer, received a suspension notice which stated that it would not be implemented if he accepted a demotion. Plaintiff indicated he would resign, and then later changed his mind and decided instead to appeal his suspension. The board of fire and police commissioners concluded that he had resigned. Plaintiff sought a writ of mandamus. The trial court ordered his reinstatement. The judgment of the circuit court was vacated for lack of subject matter jurisdiction because the holding by the board was reviewable only by means of the administrative review law.
The People ex rel. NBD Trust Company of Illinois v. Village of Hoffman Estates, First District Appellate Court, Docket No. 1-91-0452, (August 28, 1992). Plaintiffs filed a quo warranto complaint against the Village alleging the Village unlawfully annexed its property. The property was annexed pursuant to an annexation agreement between the Village and the previous owner of the property. The agreement required the owner (and purchasers) to file a petition for annexation no later than 90 days after the property became contiguous to the Village and that the petition was subject to "contemporaneous" Zoning and classification under applicable village ordinances. The Village agreed to annex the property. On March 22, 1984, the previous owner filed a petition to annex, an ordinance annexing the property was presented to the Village and then was tabled. On March 13, 1989, plaintiffs bought the property. On April 16, 1990, the annexation ordinance was passed. Plaintiffs claim the ordinance was void because they did not file the petition. The trial court found that the Village had abandoned the annexation proceeding and granted summary judgment to the plaintiffs. This court reversed and remanded, the Village had contested plaintiffs' claim that it did not comply with the agreement which is a disputed issue of material fact.
The People of the State of Illinois ex rel. The Town of Aurora and the People of the State of Illinois ex rel. Richard Hammond v. the City of Aurora, 222 Ill. App. 3d 950, 584 N.E.2d 959, 165 Ill.Dec. 525, (Second District, December 24, 1991). Aurora passed an ordinance purporting to disconnect a portion of property that it had annexed two years earlier. Plaintiffs sought to declare this action null and void and claimed that the city was still responsible for two streets adjacent to the "deannexed" land. The Appellate Court, affirming the trial court, held that a municipality has no authority to unilaterally disconnect its own property. The Court also held that even if the city had validly disconnected the property, it would not have shed its burden to maintain the streets because, under Section 7-4-2 of the Municipal Code, the property is still owned by the city and has not been annexed by another municipality, thus the city's burden to repair and maintain would still be present.
Peoria Firefighters Local 544 v. Korn, 229 Ill. App. 3d 1002, 594 N.E.2d 742, 171 Ill.Dec. 598, (Third District, June 5,1992). Plaintiffs sought to compel arbitration. Their contract included a broad grievance and arbitration clause under which employees could elect either grievance or arbitration but not both. Plaintiffs had previously filed a grievance against the City. This court held that the contract specifi-
December 1992 / Illinois Municipal Review / Page 25
cally provided for an election of remedies and that the trial court correctly dismissed the petition to compel arbitration.
City of Rolling Meadows v. National Advertising, 228 Ill. App. 3d 737, 593 N.E.2d 554, 170 Ill.Dec. 662, (First District, November 27, 1991). Permits were issued to National Advertising to erect billboards. The city later learned of a restrictive covenant on the property, limiting improvements over 45 feet high and allowing only on-premise billboards. The covenant was enforced by the Court and the defendants were required to remove their billboards as the city did not abandon their right to enforce the covenant.
f. Civil Rights
Hayes v. City of Chicago, 230 Ill. App. 3d 603, 595 N.E.2d 144, 172 Ill.Dec. 81, (First District, June 4, 1992). Plaintiff alleged that the defendants, two Chicago police officers, deprived the plaintiffs decedent of liberty without due process of law when they placed him in an inebriated condition in the rear compartment of a paddy wagon and caused him serious injuries which resulted in paralysis. The trial court granted summary judgment for the defendants. This court found that Hayes was not coerced or persuaded by the officers to accept their protection, that he was never arrested, and that he became voluntarily intoxicated. Therefore, summary judgment was proper as Hayes was not sufficiently deprived of his liberty to trigger the protections of the due process clause. This court, however, found that the trial court did abuse its discretion in denying the plaintiff's motion for leave to file an amended complaint, and, therefore, the case was remanded.
g. Conflict of Interest
Illinois Municipal League Risk Management Association v. Seibert, 223 Ill. App. 3d 864, 585 N.E.2d 1130, 166 Ill.Dec. 108, (Fourth District, January 16, 1992). In a § 1983 suit against a police officer, a conflict of interest existed between the officer and the insurer as to the claim for punitive damages since the evidence necessary for the constitutional violation claim and punitive damages claim varied in nature and quantity. The officer should have been given the opportunity to have individual counsel.
h. Coterminous City/Township
Town of the City of Bloomington v. Bloomington Township, Fourth District Appellate Court, Docket No. 4-92-0010, (August 24, 1992). On four different dates, the City of Bloomington annexed four parcels of land in Bloomington Township. On the dates of these annexations, the boundaries of the City Township were coterminous within the city. The City Township claimed that all four annexed parcels had automatically been transferred from Bloomington Township to the City Township when the transfer question was placed on the ballot. The voters of Bloomington Township voted against the transfer in November of 1991. Before the November election, the City and the City Township sought a declaratory judgment that the four parcels had been automatically transferred to the City Township and therefore the referendum was null. The trial court held that the parcels had been transferred, and the referendum results were invalid. This court affirmed the judgment of the trial court. Bloomington Township's failure to pass a resolution for the parcels contained in the fourth annexation did not stop the City from pointing out Bloomington Township's failure to comply. Moreover, Bloomington Township did not pass the statutorily required protest vote within 45 days of ascertaining that the City's fourth annexation had annexed some of its land. Sustaining an objection to opinion testimony on a question of law was not in error.
i. Demolition Notice
Hudlin v. City of East St. Louis, 227 Ill. App. 3d 817, 591 N.E.2d 541, 169 Ill.Dec. 368, (Fifth District, May 4, 1992). This case involves the taking of property pursuant to Section 11-31-1 of the Illinois Municipal Code. Two separate cases were consolidated. Both plaintiffs alleged that defendant failed to give them the notice required under the statute prior to the demolition of their property. The trial court granted summary judgment for the plaintiffs. The statute pro-
Page 26 / Illinois Municipal Review / December 1992
vides that no municipality is entitled to an order for demolition unless it first serves notice of the demolition hearing on the owner and allows the owner 15 days in which to put the building in safe condition or to demolish it. Notice was sent to the last taxpayer of record rather than to the plaintiff's address listed on the deed. The issue was whether the defendant made a "diligent" search for the whereabouts of the owners of the subject property. The City had conducted a title search. This court affirmed in part, and found that even though a search was performed prior to mailing the notice, it could not be said that the identities and whereabouts of the owners were not ascertainable. The case was reversed and remanded on the issue of damages only.
j. Eminent Domain
Village of Fox River Valley Gardens, et al. v. Lake County Forest Preserve District, 224 Ill. App. 3d 919, 586 N.E.2d 813, 166 Ill.Dec. 855, (Second District, January 31, 1992). The District sought to condemn 225 acres located within the Village. The land is along the Fox River and contiguous to Lyons Prairie. The Village refused to consent to the District's condemnation of the land. The District then authorized an eminent domain action. The circuit court dismissed the action. The Second District, reversed finding that a forest preserve district needs municipal consent to acquire municipal property unless the property is contiguous to an existing park or forest preserve, as it was in this case. Thus, consent was not necessary.
Ekkert v. City of Lake Forest, 225 Ill. App. 3d 702, 588 N.E.2d 482, 167 Ill.Dec. 841, (Second District, March 6, 1992). Statutory age limitations for firemen could not be extended by the defendant municipality. Municipal action taken without proper authority cannot bind the municipality. The defendants could not offer employment to the plaintiff when the plaintiff was beyond statutory age limitations at the time of his application.
Lawrence Hahn v. The City of Harvard, Second District Appellate Court, Docket No. 2-91-1056, (July 27, 1992). Plaintiff claimed he was wrongfully terminated from his position as a police officer for the City of Harvard. The sole issue on appeal was whether a police chief, under the mayor's directive, has the power to terminate an officer for reason of economic necessity or whether this power rests solely with the board of fire and police commissioners. Plaintiff argued that Section 10-2.1-18 when read in conjunction with the statutory provisions on appointment, promotion, and discipline contemplates some form of board action with regard to economic layoffs. This court found that Section 10-2.1-18 makes no mention of procedural requirements with regard to reductions in force, and it does not purport to vest any particular governmental body with sole authority to implement good-faith layoffs for economic necessity. Moreover, had the legislature intended to require board implementation of good-faith economic layoffs, it would have expressly provided for it. Section 10-2.1-18 does not require a board of fire and police commissioners to implement a good-faith layoff for economic necessity.
Hayes v. The Board of Fire and Police Commissioners of the Village of Clarendon Hills, 230 Ill. App. 3d 707, 595 N.E.2d 683, 172 Ill.Dec. 322, (Second District, June 26, 1992). Plaintiff, a police officer, was appointed assistant shift commander or "corporal" assistant shift commander. This position was not established by the applicable village ordinance, but was established by the police chief. Plaintiff was later not promoted to sergeant but two patrol officers were. Plaintiff claims he was entitled to the promotion because he was higher in rank. Plaintiff then filed for a declaratory judgment. This court affirmed, holding that plaintiff failed to show that he attained the rank of corporal and did not decide the issue of whether a police department may create a rank without official action by the Board of Fire and Police Commissioners.
Poturalski v. The Police Board of the City of Chicago, 228 Ill. App. 3d 864, 593 N.E.2d 781, 170 Ill.Dec. 892, (First District, May 1, 1992). Plaintiff was discharged from his position as a police officer because he did not reside within the City as required by the department rules. Plaintiff filed for administrative review of the Board's decision, but did not name the superintendent as a defendant. The Board moved to dismiss, claiming that the superintendent was a necessary party. That motion was denied and later remanded. The motion was granted, and plaintiff amended his complaint. The Board then moved to dismiss based on no notice of the motion to amend. The case was dismissed. 'I'his court affirmed, holding that when a party of record was not named as a defendant and summons was not issued on him within the 35-day period set forth in the Administrative Review Law, the case must be dismissed. This cannot be cured by the plaintiff amending his complaint.
Swanson v. The Village of Lake in the Hills, Second District Appellate Court, Docket No. 2-91-1260, (August 14, 1992). Plaintiff, a police officer, brought an action against his employer (the Village) for accrued vacation pay pursuant to the Wage Payment and Collection Act, disability pay pursuant to the Public Employee Disability Act, and attorney fees under the Attorneys Fees in Wage Actions Act. The trial court found that defendant owed plaintiff $1,806.25 in accrued vacation pay and $3,103.02 in disability pay, but denied plaintiff's request for attorneys fees. Plaintiff appealed the denial of attorneys fees, and defendant cross appealed the award of vacation and disability pay. Plaintiff was terminated from his job in 1987. In August of 1986, plaintiff was hospitalized and treated for stress and headaches which plaintiff contended resulted from his work. Plaintiff tried to work on December 2, 1986, but his headaches returned. This court found that the evidence supported the trial court's award of both vacation pay and disability pay and that the trial court properly denied attorneys fees.
1. Freedom of Information Act
Osran v. Bus, 226 Ill. App. 3d 704, 589 N.E.2d 1027, 168 Ill.Dec. 627, (Second District, March 20, 1992). An exemption to the FOIA prohibits disclosure of records relating to "real estate purchase negotiations". Defendants properly refused to produce records regarding value and cost site analysis for a landfill development.
m. Hotel-Motel Tax
Northwestern University v. City of Evanston, 221 Ill. App. 3d 893, 582 N.E.2d 1251, 164 Ill.Dec. 307, (First District, November 1, 1991). An amendment to the City of Evanston's home-rule hotel-motel tax ordinance that extended the application of the tax to a convention center or conference facility not open to the public and devoted primarily to educational programs, violated the uniformity requirements of Article IX of the 1970 Illinois Constitution. Article IX states that "in any law classifying the subjects or objects of non-property
December 1992 / Illinois Municipal Review / Page 27
taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly."
Barrett v. Forest Preserve District of Cook County, 228 Ill. App. 3d 975, 593 N.E.2d 990, 171 Ill.Dec. 170, (First District, May 15, 1992). Plaintiff, a sixteen year old, sought recovery for personal injuries sustained while on defendant's premises. The trial court entered summary judgment for the defendant on the claim of willful and wanton misconduct. The trial court found that the record did not support that plaintiff was engaged in an intended and permitted use of forest preserve property when she was injured. Plaintiff was injured when she fell from a rope swing into a ravine located on forest preserve property. This court found that because the danger was obvious, the defendant was under no duty to protect against the type of injuries sustained by the plaintiff. Plaintiff failed to establish a duty owed to her by defendant.
Gresham v. The Town or Normal, 229 Ill. App. 3d 952, 595 N.E.2d 201, 172 Ill.Dec. 138, (Fourth District, June 11, 1992). Plaintiff's decedent was killed in a car accident at the intersection of U.S. Rt. 150 and College Avenue in Normal, Illinois. This was a state intersection. The State had contracted with the town, but the contract did not provide for the erection of traffic control devices. It was the duty of the State to erect these devices, thus the town was immune.
Kristin Harding v. City of Highland Park, 228 Ill. App. 3d 561, 591 N.E.2d 952, 169 Ill.Dec. 448, (Second District, May 5, 1992). Plaintiff sued the City for damages she sustained when she fell into a water meter pit owned and maintained by the defendant. The trial court entered judgment notwithstanding the verdict for the defendant based on its conclusion that actual or constructive notice of the condition was required by statute separate from proof that the dangerous condition was directly caused by the City in the first place. Plaintiff claims that notice was not necessary to allege because the municipality performed the negligent act. This court found when an affirmative act of a municipality's agent causes a dangerous condition, no actual or constructive notice of said condition is required. The condition of the pit was created by defendant's employees. The trial court erred in granting defendant's motion for judgment notwithstanding the verdict.
Schellenberg v. Winnetka Park District, __ Ill. App. 3d __, 596 N.E.2d 93, 172 Ill.Dec. 814, (First District, June 19, 1992). A 15-year-old dove into water owned by the defendant and suffered a spinal cord injury. Plaintiff was performing a run and plunge dive into shallow water. Defendant's testimony showed there were no rules concerning "body surf entries". The circuit court granted summary judgment for the defendant, contending the danger was open and obvious. This court reversed, finding that summary judgment was not appropriate because even if the danger was open and obvious, the trier of fact must determine whether defendant had a duty to warn and whether plaintiff's understanding of the risk relieved the defendant of a duty to warn.
o. Intergovernmental Agreements Elk Grove Township Rural Fire Protection District v. Village of Mount Prospect, 228 Ill. App. 3d 228, 592 N.E.2d 549, 170 Ill. Dec. 113, (First District, April 10, 1992). The District challenged the validity of an intergovernmental fire service agreement between themselves and the Village. The agreement provided that the Village would take over all fire protection and emergency ambulance services being furnished by the District to Village residents. The agreement would be binding for ten years, after which several other options were available. The trial court granted summary judgment for the District, finding the agreement null and void as against public policy. The agreement had provided for a tax to be levied by the District and a donation of the revenues to the Village. The Appellate Court affirmed holding that although there is statutory and constitutional authority which would allow the District and the Village to enter into a contract for fire protection services and to levy taxes to pay for such services, this contract is void ab initio because it is unresponsive to changed conditions and clearly denied prospective administrations and taxpayers any input into future levies as required by law. This was a de facto dissolution of the District without referendum.
Thomas Altman v. The City of Chicago and The Chicago Police Department, 224 Ill. App. 3d 471, 586 N.E.2d 698, 166 Ill.Dec. 740, (First District, December 31, 1991). The plaintiff's complaint claiming he had a contractual right to a higher performance rating and a promotion was properly dismissed. The plaintiff contended that departmental notices created a contractual right for police officers seeking a promotion. The Appellate Court held that these notices were not clear enough so that an employee would reasonably believe that an offer has been made, thus the plaintiff did not allege tacts sufficient to support his claim.
Robin Trettanero v. The Civil Service Commission of the City of Aurora, Second District Appellate Court, Docket No. 2-91-0245, (November 6, 1991). The Commission denied the plaintiff, a member of the police department, a hearing regarding her suspension without pay which she claims she was entitled to under Section 10-1-18 of the Municipal Code. The Court held that plaintiff was not entitled to a hearing as she was covered by a labor agreement which established a grievance procedure and, under the city's ordinance, the grievance procedure was plaintiff's only remedy.
Archview Investments v. City of Collinsville, et al., 223 Ill. App. 3d 24, 584 N.E.2d 821, 165 Ill.Dec. 387, (Fifth District, December 12, 1991). Plaintiff appealed from the denial of a building permit application for an abortion clinic. The city's denial was based on; 1) an incomplete application; and, 2) that abortion clinics are contrary to the general health, safety, and welfare of the public. The Fifth District found the city's denial was not against the manifest weight of the evidence, and that plaintiff's application failed to comply with several provisions of the Building Officials Conference of America Code as adopted by the city. The Court stated that even if the council considered the abortion issue when addressing the plaintiff's application, it did not matter because the application was deficient under the city ordinances.
East Side Fire Protection District v. City of Belleville, 211 Ill.. App. 3d 654, 582 N.E.2d 755, 164 Ill.Dec. 192, (Fifth District, December 6, 1991). Defendant annexed land which had been part of the plaintiff fire protection district. Plaintiff challenged the annexation alleging it was part of a "master plan" to progressively annex all the land within the fire protection district. The Appellate Court held that the plaintiff's remedy against disconnection was limited to those grounds enumerated in Section 20 of the Fire Protection District Act
Page 28 / Illinois Municipal Review / December 1992
(Ill. Rev. Stat. 1989, ch 127 1/2, par. 38.3). Thus, any claim that an annexation was part of a "master plan" was not properly raised.
r. License Revocation
Puss N Boots, Inc. v. Mayor's License Commission of the City of Chicago, __ Ill. App. 3d __, 597 N.E.2d 650, 173 Ill.Dec. 676, (First District, June 26, 1992). Plaintiff operated under its license for five years. The plaintiff offered both nude and semi-nude dancing. Plaintiff was served with a notice of a hearing to determine whether plaintiff's license should be revoked. Allegedly, three female agents of the plaintiff made obscene gestures in violation of the Municipal Code of the City of Chicago. Plaintiff's license was revoked on administrative review in circuit court, the revocation was affirmed. This court reversed, finding that the mayor lost jurisdiction to revoke the plaintiff's license by failing to act within 15 days of the hearing. The language of the ordinance made action within 15 days mandatory.
s. Liquor Control
Beer Barn, Inc. v. Dillard, 227 Ill. App. 3d 68, 590 N.E.2d 1042, 1169 Ill.Dec. 123, (Fifth District, April 14, 1992). Plaintiffs applied for a retail package-liquor license. Defendants denied the application. The State Liquor Control Commission reversed the defendants' decision and ordered a license to be issued to the plaintiffs. The city clerk refused to issue plaintiffs a license. Plaintiffs then sought mandamus relief. Plaintiffs were granted summary judgment. Defendants claim the writ of mandamus was improperly issued because there was an action pending upon which the plaintiffs rested their right to mandamus. This court found that it was improper to compel the defendants to issue liquor licenses when the authority of the State Liquor Control Commission over the licenses is currently on review in a superior tribunal.
t. Municipal Liability
Josephine Castorena v. Browning-Ferris Industries of Illinois, et al.. Second District Appellate Court, Docket No. 2-90-1049, (July 22, 1992). In this case, the plaintiff sued the City of Elmhurst, among other parties, after a car she was riding in hit a dumpster located on a roadway controlled by the City. The issue on appeal centered on whether the City was liable since the City had prior notice of this dangerous condition. The appellate court initially found for the plaintiff; however, the state supreme court remanded the case for reconsideration in light of its recent decision in West v. Kirkham, 142 Ill.2d 1, (1992). Consistent with the West case, the appellate court found that the Local Governmental and Governmental Employee Tort Immunity Act applies even when an entity has prior notice of a dangerous condition, and thus no liability existed against the City.
Blanca Coronel v. Chicago White Sox, Ltd., 230 Ill. App. 3d 734, 595 N.E.2d 45, 171 Ill.Dec. 917, (First District, May 19, 1992). Plaintiff was struck by a baseball when she attended a game at the stadium owned by the defendant. Because plaintiff was seated only three seats away from the protective screen, the issue was as follows: Did the defendant owe a duty of care to those spectators seated in the most dangerous area of the park? The Appellate Court stated that there is no blanket exemption from liability, even if the danger seems "open and obvious". Further, plaintiff's evidence that the protective screen did not constitute adequate protection met the requisite burden for her case to proceed to the jury. Hence, the question of negligence is one for the trier of fact, and the trial court improperly dismissed on summary judgment. The case was reversed and remanded.
Lipper v. City of Chicago, First District Appellate Court, Docket No. 1-91-0959, (August 3, 1992). Plaintiff claimed the City failed to maintain its sidewalks in a reasonably safe manner. While riding his bicycle, plaintiff struck a raised portion of the sidewalk surrounding a manhole and fell off his bicycle. Plaintiff fractured his hip. On appeal, Plaintiff claims the City owed him a duty of care as an adult bicyclist on a city sidewalk. The question presented was whether the plaintiff was an "intended or permitted" user of the sidewalk. Chicago has an ordinance prohibiting bicycling on sidewalks by persons over 12 years old unless the sidewalk has been designated as a bicycle route. Plaintiff argued that a bicyclist is an intended user of this sidewalk because one must use it to reach the bike path on Lake Shore Drive. This court affirmed, holding that because bicycle riding was expressly prohibited, plaintiff was not an intended or permitted user of the sidewalk.
O'Neill v. Krupp, 226 Ill. App. 3d 622, 589 N.E .2d 185, 168 Ill.Dec. 71, (Third District, April 2, 1992). Plaintiff's son was killed when struck by a car driven by Krupp. Krupp's vision was impaired by a line of shrubs growing on a corner lot owned by other defendants (the Schultzes). Plaintiff claimed the Schultzes failed to maintain their property as required by city ordinances. The Appellate Court found that a city ordinance can establish a duty owed by a landowner to a plaintiff to whom no duty is owed at common law. The ordinances were clearly intended to protect people traveling on the streets.
Quintana v. City of Chicago, 230 Ill. App. 3d 1032, 596 N.E.2d 128, 172 Ill.Dec. 849, (First District, May 12, 1992). Plaintiff brought an action in negligence against the City and four drivers for injuries she sustained when she was struck by a car when crossing a city street where the traffic lights were not working. On appeal, the plaintiff argues that: 1) summary judgment was not proper for the City because it was reasonably foreseeable that a collision would occur when all four traffic lights were inoperable; and, 2) that the trial court in determining that plaintiff's conduct violated a statute as a matter of law when there was conflicting testimony concerning the plaintiffs conduct. This court found that the inoperative traffic lights were merely a condition by which the injury was made possible. Any causal connection was broken by the conduct of the drivers and that if the statute had been complied with, then the accident would not have happened in the manner which it did.
City of DeKalb v. David B. White, 227 Ill. App. 3d 328, 591 N.E.2d 522, 162 Ill.Dec. 349, (Second District, April 27, 1992). White was issued a speeding ticket. He was found guilty of violating a city ordinance, and the City imposed a minimum fine plus court costs,
December 1992 / Illinois Municipal Review / Page 29
totaling $68. The trial court found the ordinance invalid and set the fine and costs at $58, The issue was whether the minimum fine provision of the DeKalb ordinance conflicts with the Illinois Vehicle Code. DeKalb's home-rule ordinance established a minimum fine of $34 to a maximum fine of $500 plus court costs. This court found that the ordinance did not conflict with State law. There was no requirement that the ordinance be identical to the State rule upon which it is modeled. There was no proscription of a minimum fine, and the ordinance is not repugnant to State policy.
City ot Peoria v. Heim, 229 Ill. App. 3d 1016, 594 N.E.2d 778, 171 Ill.Dec. 634, (Third District, June 17, 1992). The City sued defendant for failing to have one parking space for each dwelling unit, in violation of a city ordinance. The structures in question were converted from single family residences to multi-family dwellings in the 1950s. The changes to the property occurred prior to the enactment of the ordinance. The trial court granted the defendant's motion for summary judgment. This court held that there was no ordinance violation as the zoning ordinance in question could not be retroactively applied.
Village of South Holland v. Chernick, First District Appellate Court, Docket Nos. 1-89-2879, 1-89-2902, 1-90-0134 (Consolidated), (August 7, 1992). Defendant Chernick is the agent for two car washes located in the Village. Both car washes were charged by the Village with violating the Village's Sunday closing ordinance. The circuit court dismissed the charges on the basis that the ordinance in question appeared to exempt car washing. The Village, on appeal, argued that the apparent exemption was a typographical error that should be ignored. This court looked to the legislative intent of the ordinance in question and found that the Village did not intend to provide an exemption for car washes. However, the issue of notice still needed to be addressed and, therefore, the case was remanded.
Village of Worth v. Watson, First District Appellate Court, Docket No. 1-90-3095, (June 10, 1992). Plaintiff alleged that defendants violated a municipal ordinance by allowing trucks of over one and one half tons capacity to park on their property, failing to properly surface the parking area, and storing junk on their property. Defendants were in the business of towing, storing, and servicing motor vehicles. Both defendants and plaintiffs filed motions for summary judgment. The trial court granted defendants' motion and the plaintiff appealed. Plaintiff claimed that the trial court erred in denying them leave to file an amended complaint and in granting summary judgment to the defendants. This court reversed in part, granting plaintiff leave to file a second amended complaint in connection with the allegation that the defendants stored junk. This court also held that the principal use of defendants' property was to repair vehicles and the parking of trucks was incidental to the principal use. Therefore, the ordinance prohibiting the parking of the trucks weighing over one ton as an accessory use was applicable to defendants' property, and the trial court erred in granting summary judgment for the defendants.
Waterfront Estates Development, Inc. v. City of Palos Hills, __Ill. App. 3d__, 597 N.E.2d 641, 173 Ill.Dec. 667, (First District, June 15, 1992). An appearance regulation ordinance that created a commission with power to hold hearings in connection with building permit applications was found unconstitutional. The ordinance was vague and gave extraordinarily broad discretion to the commission.
w. Prevailing Wage Act
People ex rel. E. Allen Bernardi v. The City of Highland Park, 225 Ill. App. 3d 477, 588 N.E.2d 427, 167 Ill.Dec. 786, (Second District, February 26, 1992). The City issued contract specifications for a public works project. The Director of the Department of Labor then filed a complaint that the city failed to comply with the Prevailing Wage Act. The City contended that as a home rule unit, they did not have to comply with the Act. The circuit court agreed. The Appellate Court affirmed the circuit court and the plaintiff was granted leave to appeal by the Illinois Supreme Court. The Illinois Supreme Court reversed and remanded for a determination of the wages to be paid and whether the contractor would be disqualified from future contracts. The suit was dismissed for want of prosecution, the dismissal was then vacated, and the suit was voluntarily dismissed. The defendant contractor then moved for Section 2-611 sanctions. The circuit court granted the motion.
The Second District Appellate Court held that the requirement that post-trial motions be filed within 30 days of judgment does not apply to Section 2-611 motions, and Section 2-611 motions may be filed anytime the circuit court has the jurisdiction over the underlying lawsuit. The circuit court's action in considering the motion for sanctions was not beyond the authority of the Supreme Court's mandate. The circuit court, however, abused its discretion when it found the complaint violated Section 2-611 and that defendant was entitled to a monetary award.
x. Public Utilities
Derby Meadows Utility Company v. ICC, 228 Ill. App. 3d 910, 593 N.E.2d 848, 171 Ill.Dec. 28, (First District, May 8, 1992). Derby Meadows appeals from a final order of the ICC denying it certification to provide water and sewer services to an undeveloped subdivision in Cook County. The issue before the Appellate Court was whether the Commission's final order was clearly arbitrary, unsupported by substantial evidence, or contrary to an established rule of law. This court found that the Commission based its findings on two separate circuit court cases. These cases, however, were subsequently reversed and remanded by the Appellate Court and are still pending. Therefore, the plaintiff's argument that the Village may be enjoined from providing services may still be viable. The Commission's final order was unsupported by the circuit court cases, and this case was then remanded.
Village of Bolingbrook v. Citizens Utility Company of Illinois, 4 Ill.2d 597 N.E.2d 246, 173 Ill.Dec. 538, (Third District, July 24, 1992). The Village of Bolingbrook, a home rule unit, brought suit against the Citizens Utility Company of Illinois, a public utility, for discharging untreated sewage in violation of a village ordinance. The dumping by Citizens was not, however, in violation of Illinois Commerce Commission (ICC) regulations. The appellate court, in affirming the lower court's decision, found for Citizens by stating that the General Assembly intended to give the ICC "the power and authority to comprehensively regulate all public utilities in the state", and home rule regulations in this area are, therefore, null and void. Justice Barry dissented finding no such intent by the State legislature.
County of Will v. Village of Rockdale, 226 Ill. App. 3d 634, 589 N.E.2d 1017, 168 Ill.Dec. 617, (Third District, April 2, 1992). Will County sought a declaratory judgment that the county treasurer was
Page 30 / Illinois Municipal Review / December 1992
not required by law to bill and collect the Village's special service area tax. The tax was based upon the amount of front footage of property in a special service area. The Appellate Court found that such taxes are the responsibility of the municipality to bill and collect and that absent a clear mandate from the legislature, the County should not be burdened with billing and collecting this tax.
Derby Meadows Utility Company v. Village of Orland Park, 226 Ill. App. 3d 195, 589 N.E.2d 700, 168 Ill.Dec. 300, (First District, February 21, 1992). Plaintiff sought an injunction to prevent Orland Park from providing utility service to a subdivision. Plaintiff claimed defendant tortiously interfered with an oral contract between plaintiff and the developer of the subdivision. The complaint was dismissed under the Statute of Frauds. The Appellate Court affirmed the trial court and refused to impose sanctions against the plaintiff for filing a complaint that was later dismissed on Statute of Frauds grounds because plaintiff's lawyer believed an exception to the Statute of Frauds would apply.
Kubiak v. City of Kewanee, 228 Ill. App. 3d 605, 592 N.E.2d 1200, 170 Ill.Dec. 520, (Third District, May 15, 1992). Plaintiff was employed as a city building commissioner. He was fired in 1982, and he filed a wrongful discharge action. The claim was settled for $10,000, then the City attempted to revoke its offer. In a previous ruling, the Appellate Court held that the offer could not be revoked, and that the trial judge did not err in sanctioning the City. The City continued to fight the judgment. The court ordered the City to pay costs and attorney's fees under Supreme Court Rule 357 which allows sanctions for frivolous appeals. An appeal is frivolous "if a reasonable, prudent attorney would not in good faith have brought such appeal."
aa. Service of Process
Miller v. Town of Cicero, et al., 225 Ill. App. 3d 105, 590 N.E.2d 490, 168 Ill.Dec. 853, (First District, January 24, 1992). Plaintiff sued Cicero, the Village of Stickney, and Cook County for personal injuries she received after colliding with a concrete platform in the center of Pershing Road where Cicero and Stickney meet. The trial court denied Stickney's motion to quash service of summons and to vacate a default judgment. The summons only gave the name "Village of Stickney" and a street address. This court reversed, finding service was improper.
bb. Special Use Permit
Consumers Illinois Water Co. v. County of Will, 220 Ill. App. 3d 93, 580 N.E.2d 927, (October 18, 1991). The Appellate Court held that the trial court properly entered an agreed settlement order calling for the issuance of a special use permit for construction of a wastewater treatment plant, despite the contention that the order contravened the requirement that special use permits be passed by a 3/4 vote of the county board. The 3/4 requirement did not apply and the record showed that the majority of the board had previously voted to grant the special use.
cc. Tort Immunity
Nellie Burke v. Nick Grillo and the City of Elgin, 227 Ill. App. 3d 9, 590 N.E.2d 964, 169 Ill.Dec. 45, (Second District, April 7, 1992). Plaintiff was injured when she fell onto a sidewalk. Plaintiff tripped on a dip of earth next to the sidewalk. Plaintiff claimed the City of Elgin was negligent because it failed to exercise reasonable care and diligence to keep and maintain the public sidewalk in a reasonably safe condition for ordinary use. The City claimed it had no duty to maintain its property for pedestrians injured while walking on property outside of designated crosswalks or walkways. The City also claimed that even if a duty existed it had no liability because it did not have actual or constructive notice of the defect, which is required by the Tort Immunity Act. The Appellate Court found that plaintiff did not provide sufficient facts to show that the City had constructive notice of the condition. There was no evidence that the hole was plainly visible or that it was apparent for a long time prior to the injury.
December 1992 / Illinois Municipal Review / Page 31
Curatola v. Village of Niles, 230 Ill. App. 3d 743, __ N.E.2d __, __Ill. Dec. __, (First District, April 2, 1992). Plaintiff, while delivering freight, fell on a village street. He allegedly stepped into a pothole, twisted his foot, and fell. Plaintiff contended that the Village owed him a duty of exercising ordinary care to maintain its property in a reasonably safe condition for intended or permitted users who are using the property in a reasonably foreseeable manner. The circuit court held that no such duty existed. This Court affirmed, finding that no duty is owed to pedestrians who use the public streets as walkways and walk outside of the crosswalks, and foreseeability is not the sole factor to use in assessing whether a duty exists. The Court stated that "Municipalities cannot be subject to the unreasonable financial burden of every foreseeable user."
Nancy John v. City of Macomb, Third District Appellate Court, Docket No. 3-91-0721, (July 7, 1992). Plaintiff sued the City for damages for personal injuries she sustained from a fall on the courthouse lawn while attending a city festival. The trial court denied defendant's motion to dismiss holding that the courthouse lawn was not intended for recreational purpose. Defendant claimed immunity under Section 3-106 of the Tort Immunity Act and moved for summary judgment. The trial court granted the defendant's motion. This court reversed finding that the record lacked a factual basis for determining that the area where the plaintiff fell was specifically intended for recreational use.
Rosario Munizza and Terry Scalise v. City of Chicago, 222 Ill. App. 3d 50, 583 N.E.2d 561, 164 Ill.Dec. 645, (First District, December 23, 1991). Plaintiffs were injured when a cab driver (Watkins) shot at them and one of their companions. Plaintiffs claimed that Watkins was improperly granted a license by the city. The Appellate Court held that the defendants were not immune from suit under the Tort Immunity Act because the city's ordinances required that defendants fully examine and do a background check on license applicants which would negate any immunity from suit. However, the Court found that plaintiff's claims were insufficient in that they did not show that defendant owed them any duty that was breached and failed to allege facts reflecting causation on the part of the city.
Mary Platacis v. Village of Streamwood, 224 Ill. App. 3d 336, 586 N.E.2d 864, 166 Ill.Dec. 606, (First District, December 27, 1991). Plaintiff, administratrix of the estate of her deceased daughter, complains that the defendants were negligent in their search for the decedent who was intoxicated and lost on a winter night. The defendants were immune from liability under the Tort Immunity Act (Section 4-102), as this Section applies to searches for missing persons. No "special duty" was owed to the decedent as she could not have been under the control of police officers when her location was unknown.
Dino Santelli v. City of Chicago, 222 Ill. App. 3d 862, 584 N.E.2d 456, 165 Ill.Dec. 277, (First District, December 12, 1991). This case involved an action for damages for fatal injuries from an automobile accident. Plaintiff claimed that the trial court erred in finding that he failed to state a cause of action against the City for failing to remove a raised median strip that the plaintiff contends was an unreasonably dangerous condition. This court held that there was not a sufficient cause of action stated against the City for failing to remove the median strip because these counts did not allege how the strip was unreasonably dangerous. However, leave to amend should have been granted.
Shull v. Harristown Township, 223 Ill. App. 3d 815, 585 N.E.2d 1164, 166 Ill.Dec. 142, (Fourth District, January 16, 1992). Plaintiff, an 8-year-old child, was injured while swinging on a gate of a storage yard owned by the defendant township. The Appellate Court held that the gate was not a dangerous condition from which the township had to protect children.
Angela Simpson v. City of Chicago, First District Appellate Court, Docket No. 1-89-2883, (July 14, 1992). Plaintiff, a ten-year-old girl, was seriously injured when her bicycle struck a Chicago police car driven by Officer John Salmassi. Plaintiff claimed that defendant was negligent. Defendant was on his way to investigate a missing persons report when the collision occurred. His lights and siren were not activated. The trial court granted defendant's motion to dismiss on the basis that the defendant officer was engaged in the enforcement and execution of the law at the time of the accident and,
Page 32 / Illinois Municipal Review / December 1992
therefore, was immune under Section 2-202 of the Tort Immunity Act. Plaintiff contends that the defendant's deposition established that he was merely engaged in routine patrol duties. Defendant argues that because Salmassi was required by law to fill out a missing persons report, he was engaged in the execution or enforcement of a law. This court reversed, and found that even the fact that Salmassi's activities were governed by some legal requirement was insufficient to raise them to the level of executing or enforcing the law.
dd. Worker's Compensation
Village of Winnetka v. Illinois Industrial Commission, First District Appellate Court, Docket No. 1-90-3153-WC, (February 7, 1992). Claimant was a firefighter for Winnetka who was injured in the course of his employment. The Village paid his salary and medical bills for the 7 3/7 weeks he was off work. Claimant then sought worker's compensation. The Village claimed that their ordinance and the Pension Code barred the right to compensation under the Act. The appellate court held that the failure of the Village to provide for payment of allowances of money in Ordinance 3.14 does not cause the Village to lose the bar that Section 22-307 of the Pension Code provides, and create a gap in coverage which the Worker's Compensation Act may fill.
City of Galena v. Patrick Dunn, 222 Ill. App. 3d 112, 583 N.E.2d 616, 164 Ill.Dec. 700, (Second District, December 15, 1991). The City of Galena, although it had the power to zone contiguous territory within one and one half miles of its boundary since Jo Daviess County does not have a county-wide zoning plan, did not have the power to require a building permit for construction outside the city limit.
City of Peoria v. Warren E. Danz, 223 Ill. App. 3d 686, 585 N.E.2d 1207, 166 Ill.Dec. 654, (Third District, January 16, 1992). Peoria claimed that defendant failed to meet the minimum lot size requirement for duplexes. The subject property was built as a duplex prior to the enactment of the zoning ordinance and had not been renovated since then. The trial court erred in failing to find a lawful, non-conforming use.
County of Will v. City of Naperville, 226 Ill. App. 3d 662, 589 N.E.2d 1090, 168 Ill.Dec. 690, (Third District, March 26, 1992). Naperville purchased a 40 acre parcel of land in unincorporated Will County. This parcel was not contiguous to the corporate limits of the City. Both the City and the County claimed the power to zone the land. The City claimed that Section 7-4-2 of the Municipal Code gave it the power to zone this property. The Appellate Court found that Section 7-4-2 is a general provision describing the jurisdictional scope of a municipality's authority. Division 13 of Article 11 of the Municipal Code details a municipality's zoning powers, and Section 11-13-7 denies the power to zone outside the corporate limits when the County has enacted a zoning ordinance. Moreover, the Court noted that Naperville's status as a home rule unit did not give it any extraterritorial zoning authority, as extraterritorial powers may only be bestowed by the legislature.
Bernard Heerey v. City of Des Plaines, 225 Ill. App. 3d 153, 587 N.E.2d 526, 167 Ill.Dec. 257, (First District, February 3, 1992). The City refused to issue a building permit to the plaintiff unless he subdivided his property. The trial court granted the plaintiff mandamus and injunctive relief, finding that exhaustion of administrative remedies was not necessary. This court affirmed.
LaGrange State Bank v. The Village of Glen Ellyn, Second District Appellate Court, Docket No. 2-91-0436, (April 22, 1992). Plaintiffs sought a declaratory judgment stating that a village zoning ordinance invalidly prevented them from building a single-family residence on their property. The zoning ordinance required a lot to be 66 feet wide. The plaintiffs applied for a variation, which was denied. Plaintiffs failed to show that the ordinance was arbitrary and unreasonable as applied to them. Plaintiffs also claimed that the zoning ordinance violated Section 1983 of the Civil Rights Act because it was a "taking" and the defendant's refusal to grant a variance was a deprivation of due process. This court found that plaintiffs failed to prove any civil rights violations. It was proper to grant defendants a directed judgment since plaintiffs failed to overcome the presumption of the validity of the ordinance.
Witherspoon v. City of Moline, 227 Ill. App. 3d 1023, 591 N.E.2d 117, 169 Ill.Dec. 237, (Third District, April 23, 1992). The Moline City Council denied plaintiffs' application for a special use permit to conduct a "home occupation" in their Moline residence. They wanted to set up a home office for Dr. Witherspoon, a clinical psychologist. The Appellate Court applied the test set forth in Duggan v. County of Cook and found that the denial of the plaintiffs' request for a zoning variation was an unreasonable and oppressive application of the zoning authority. The current zoning classification permitted similar occupations which would entail client visits, the residence is set away from the other homes on the street, and the value of other homes would not be adversely affected. The economic advantages to be gained by the plaintiffs by granting the permit outweighed any health, safety, and welfare consequences to the public that would result by denying it.
Zeitz v. Village of Glenview, 227 Ill. App. 3d 891, 592 N.E.2d 384, 169 Ill.Dec. 897, (First District, April 2, 1992). Glenview enacted ordinances establishing an environmentally sensitive area (ESA), and authorizing the board of trustees to designate a "primary area" within the ESA for providing a higher degree of protection. One hundred nineteen acres out of 278 were designated a "primary area". Plaintiffs owned 10 acres of land in the ESA. This land was annexed by Glenview involuntarily in 1983. Prior to April of 1990, this land was zoned R-l. On April 3, 1989, plaintiffs applied for subdivision approval. The plan commission denied the application. In July of 1989, Glenview, by ordinance, imposed a moratorium on subdivision applications and approval in the ESA. On April 3, 1990, The Village zoned all properties within the ESA that were previously R-l to become R-E (two acres minimum lot size). The trial court granted defendant's motion to dismiss the complaint and to dismiss the action with prejudice. This Court reversed, finding the allegations in plaintiffs' complaint sufficient to support a cause of action and to withstand a Section 2-615 motion to dismiss. In determining this, the Appellate Court looked to: (1) allegations of the existing use and zoning of nearby property and property within the ESA; (2) allegations of the extent to which property values are diminished by the zoning reduction; (3) allegations of the extent to which destruction of the plaintiffs' property values promote the health, safety, and welfare of the people of Glenview; (4) allegations of the relative gain to the public compared to the hardship imposed on the individual; (5) allegations that the complaint charges that the property is suitable of an R-l zoning; and, (6) allegations with respect to the length of time the property has been vacant considered in the context of the development of the vicinity of the object property.
December 1992 / Illinois Municipal Review / Page 33
C. OPINIONS OF THE ATTORNEY GENERAL
a. Motor Vehicles: Municipal Alternative Traffic Ticket Program, No. 92-013. A municipality may not establish an alternative traffic enforcement program in lieu of issuing Uniform Traffic Citation and Complaints. The implementation of this type of procedure violates the provisions of the Illinois Vehicle Code, the Supreme Court Rules, infringes upon the duties of the Secretary of State and the circuit clerk, and is a violation of due process.
b. Governmental Ethics and Conflict of Interest: Acquiring Property of Public Officer Through Eminent Domain, No. 92-012, (June 19, 1992). A public library district may acquire the property of one of its board members through the exercise of its eminent domain authority, without violating Chapter 102, Section 3. A condemnation action does not create a contract, but the board member in question may not vote on matters pertaining to the proposed acquisition.
c. Pensions: Investment Management, No. 91-041, (November 20, 1991). Under Section 1-109.1 of the Pension Code, the board of trustees of a police pension fund may appoint one or more investment managers as fiduciaries to manage the fund's assets and may also appoint a depository to hold a custodial account.
II. FEDERAL DECISIONS
A. UNITED STATES SUPREME COURT
a. Civil Rights
Collins v. City of Harker Heights, 112 S.Ct. 1061, 117 L.Ed.2d 261, (February 26, 1992). Section 1983 of the Civil Rights Act does not apply to a municipal employee who is fatally injured in the course of his employment. The decedent's widow claimed that the City's policy of not adequately training its employees deprived the decedent of life and liberty. The Supreme Court said that the due process clause did not impose an obligation on municipalities to provide minimal levels of safety in the workplace.
Campos v. City of Houston, 112 S.Ct. 354, 116 L.Ed.2d 314, (October 29, 1991). There was no basis in law for an original order by a Supreme Court Justice enjoining an entire city election process with respect to city council elections. There was also no reason to believe the city was acting in bad faith in getting the order, by seeking to frustrate the purposes of the Voting Rights Act.
c. Eminent Domain
Yee v. City of Escondido, 112 S.Ct. 2072, 119 L.Ed.2d 265, (April 1, 1992). A city ordinance setting mobile home rents back to 1986 levels and prohibiting increases in rent without the city council's approval was not a per se taking. A taking is only effected by physical occupation. Mobile home park owners voluntarily rented their land to mobile home owners and were not required to do so.
d. First Amendment
Forsyth County, Georgia v. Nationalist Movement, 112 S.Ct. 2395, 120 L.Ed.2d 101, (June 19, 1992). A Georgia parade permit ordinance, which required every permit applicant to pay a fee to cover the costs of law enforcement and empowering the county administrator to adjust the amount of the fee, was unconstitutional.
e. Hate Crimes
R.A.V. v. City of St. Paul, Minnesota, 112 S.Ct. 2538, 120 L.Ed.2d 305, (June 11, 1992). A St. Paul ordinance prohibiting the display of symbols which arouse "anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender" was invalid under the First Amendment. The ordinance unconstitutionally prohibited speech on the basis of the subjects the speech addressed.
Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886, 120 L.Ed.2d 798, (June 29, 1992). Lucas had purchased lots on a South Carolina Barrier Island in 1986. At that time, the lots were not subject to the State's coastal zone building permit requirements. In 1988, the State enacted the Beachfront Management Act which prohibited Lucas from erecting homes on his land. This court did not decide whether the State's action in enacting the Beachfront Management Act constituted a taking of private property under the Fifth and Fourteenth Amendments and required that just compensation be given to Lucas. However, the court held that regulations that deny all economically viable uses of land are a discrete category of deprivation that requires compensation to the landowner.
B. UNITED STATES COURT OF APPEALS
a. Civil Rights
Auriemma v. Rice, (C.A. 7), 957 F.2d 397, (February 28, 1992). A new police superintendent's allegedly discriminatory demotions and promotions did not establish a municipal policy which would serve as the basis for liability. If he did discriminate, he violated rather than implemented municipal policy.
Hall v. Ryan, (C.A. 7), 957 F.2d 402, (February 28, 1992). Police officers were not entitled to qualified immunity in connection with an arrestee's attempted suicide. There was a genuine issue of material fact regarding their knowledge of the arrestee's suicidal tendencies.
McGee v. Bauer, (C.A. 7), 956 F.2d 730, (February 14, 1992). A village inspector was entitled to qualified immunity from a claim by a homeowner that his due process rights were violated by posting his home as uninhabitable and not providing a predeprivation or post-deprivation hearing. The building inspector was not the designated official to advise the homeowner of his legal right to a hearing.
Smith v. City of Joliet, (C.A. 7), 965 F.2d 235, (May 28, 1992). Plaintiff did not sufficiently show a city policy or custom when he alleged that two police officers threw him up against his car, pointed a gun at his head, and held him for 20 minutes. The plaintiff merely made several bald allegations of nine instances of excessive force from 1963 to 1988.
Diginet v. Western Union ATS, Inc., (C.A. 7), 958 F.2d 1388, (March 9, 1992). Preliminary injunction granted to Chicago preventing telecommunications company from expanding its network without a franchise was vacated. The city did not show irreparable harm or that its claim had any merit.
Billish v. City of Chicago, (C.A. 7), No. 90-1650, (May 4, 1992). Chicago had a compelling interest in implementing an affirmative action program within the fire department. The program was nar-
Page 34 / Illinois Municipal Review / December 1992
rowly tailored. Additional proceedings were necessary, however, to determine whether the equal protection clause was violated when the cut-off score was lowered to allow two minority lieutenants to be promoted to rank of captain.
Caldwell v. City of Elwood, (C.A. 7), 959 F.2d 670, (April 1, 1992). A firefighter who was suspended for going to the mayor's home to discuss concerns regarding the fire department failed to state a first amendment claim for retaliation. There was not a sufficient connection alleged between the matters discussed and the discipline taken against him. The firefighter did not allege that the defendants knew of the conversation with the mayor or the matters that were discussed.
Crot v. Byrne, (C.A. 7), 957 F.2d 394, (February 28, 1992). A determination by the Illinois Industrial Commission that an employee's discharge did not cause his subsequent stroke collaterally estopped him from relitigating that issue in his political firing action under Section 1983, despite his claim that the question in the worker's compensation case was whether his stroke "arose out of and in the course of employment". While the issue in the present action was whether his "stroke was caused by his firing".
Harrison v. City of Greenfield, Indiana, (C.A. 7), 966 F.2d 315, (July 8, 1992). A police officer who was suspended for five days without pay for using an improper holster and improper use of vehicle was not deprived of his due rights. He was not entitled to a predeprivation proceeding before a neutral party because of the opportunity he was given to answer the charges against him.
Swanson v. Lake in the Hills, (C.A. 7), 962 F.2d 602, (April 29, 1992). A police sergeant's suspension without pay did not violate due process. He received both notice and an opportunity to be heard.
d. Structural Work Act
Payne v. Village of Elwood, (C.A. 7), 957 F.2d 517, (March 23, 1992). A mayor's interest in a public construction project did not suffice to make the Village liable under the Structural Work Act for injuries sustained by a welder. The mayor's interest was only natural curiosity, he was not acting in any supervisory capacity.
C. UNITED STATES DISTRICT COURTS
Golbeck v. City of Chicago, (N.D. Ill.), 782 F. Supp.381, (January 8, 1992). Three-day suspension without pay deprived a police captain of a property interest. Some kind of hearing was required by due process.
Retired Chicago Police Association v. City of Chicago, (N.D. Ill.), 141 F.R.D. 477, (March 23, 1992). Class certification was not appropriate. The association challenged the changes made by the City to their health care plan. There was no evidence that the claims of the representative plaintiffs were typical of the class as a whole.
b. Fair Labor Standards Act
Leahy v. City of Chicago, (N.D. Ill.), 785 F. Supp. 724, (January 29, 1992). Police officer's meal breaks were not "work time" to be included in their 171-hour work period for purposes of overtime pay under the Fair Labor Standards Act.
Dickie v. City of Tomah, (N.D. Ill.), 782 F. Supp. 370, (November 12, 1992). In an action by an Illinois citizen contesting the City's condemnation of his Wisconsin property, it would be unreasonable for an Illinois court to extend jurisdiction. The City lacked minimum contacts with Illinois sufficient to give it fair warning of the litigation.
Graft v. City of Chicago, (N.D. Ill.), No. 91-C-1056, (May 28, 1992). A city ordinance regulating newsstands did not violate the First Amendment on grounds that it contained no standards governing the exercise of discretion to determine the number of newspaper stand permits to be issued by the Commissioner. The ordinance did not give the Commissioner substantial power to discriminate based on the content or viewpoint of speech.
III. CASES OF INTEREST FROM OTHER STATE COURTS
a. Curfew Ordinances
Brown v. Ashton, (Md. App.), No. 1682, Sept. Term 1991, (July 9, 1992). A municipal curfew ordinance which restricted the nighttime activities of persons under 18 years of age was found unconstitutional. Neither the vulnerability of children, their inability to make critical decisions, or the importance of the parental role would make the curfew ordinance valid.
Chatman v. Hall, (N.J.), 1992 WL 147068, (June 29, 1992). Public employees did not enjoy immunity from suit for injuries arising from the negligent inspection of streets. A state law providing for immunity for negligent inspection did not provide immunity as the statute only gave immunity when the public entity neither owned nor controlled the property. If public employees only have ministerial duties, they may be found liable if they failed to use reasonable care. If they hold positions which require the exercise of discretion, employees may be found liable if their failure to use care was palpably unreasonable.
Colorado Dog Fanciers v. City and County of Denver, (Colo.), No. 90-SA-342, (September 16, 1991). Denver's pit bull ordinance was upheld. It requires destruction or removal of pit bulls if their owners did not satisfy the dog license requirements. The Supreme Court affirmed the trial court and construed the ordinance as placing the burden of proof of pit bull status on the city by a preponderance of the evidence and not beyond a reasonable doubt.
News items and photographs of interest indicating new developments and progress in
your municipality are always of interest to
our readers. You are urged to send such information to the ILLINOIS MUNICIPAL
REVIEW for publication. Be sure your information is complete. All photographs
should be black and white glossy prints.
December 1992 / Illinois Municipal Review / Page 35