The Illinois Supreme Court has recently issued two opinions in cases which will affect municipalities across Illinois. The Illinois Municipal League was involved as an amicus in both cases.

Municipal Franchise Agreements

AT&T v. Arlington Heights (No. 72315, issued August 26, 1993) involved the laying of an 85-mile fiber optic cable between Glenview and Chicago. AT&T's fiber optic cable crossed over some 140 streets, roads, and highways and traversed some 13 municipalities. Five municipalities, Arlington Heights, Palatine, Barrington, Lake Barrington, and Crystal Lake, refused to grant permits to AT&T to install fiber optic cable beneath the street crossings without AT&T agreeing to enter into a franchise agreement. With no agreement being reached, AT&T sought a preliminary injunction allowing them to begin construction. The trial court granted the preliminary injunction. The Appellate Court affirmed the decision of the trial court, and the trial court then entered a permanent injunction finding that AT&T had the right to locate the cable beneath the streets pursuant to the Telegraph Act (Ill. Rev. Stat. 1987, Ch. 134, par. 4) and the Public Utilities Act (Ill. Rev. Stat. 1987, Ch. 111 2/3, par. 13-202). On appeal, the Appellate Court found that municipalities had no absolute right to require a franchise agreement as a precondition to the use of public streets for private gain.

The Illinois Supreme Court, in December of 1992, reversed the Appellate Court in a 4-3 opinion written by Justice Bilandic. The Petition for Rehearing filed by AT&T was accepted and the Court, with three of the Justices who wrote the majority opinion recently retired, overturned the prior opinion and held in a 5-1 decision written by Justice Heiple (Justice McMorrow taking no part) that "municipalities do not have a proprietary interest in the public streets and may not raise revenue by coercing telephone companies into franchise agreements." (Slip. Op. at 4). The Court found that municipalities only possess regulatory powers in the public streets and have no authority to rent all or part of the streets. (Slip. Op. at 6). According to the majority, the only costs that the defendants were entitled to were the actual costs associated with tunneling under the streets. The court also noted that the fact that Arlington Heights and Palatine are home rule units is of no consequence since the power of a home rule unit to levy a tax is limited to issues of local concerns, and running a fiber optic cable across the State is an issue of statewide, not merely local, concern. (Slip. Op. at 8).

Further, the Court found that if a telephone company's construction request is reasonable, municipal consent may not be unreasonably withheld and municipalities should respond to a telephone company's request within ten days. Justice Freeman, specially concurring, limited his agreement to the specific facts of this case. Justice Freeman drew a distinction, noting the fact that the municipalities involved were not receiving any services from the fiber optic cable being laid beneath their streets. Justice Freeman also disagreed with majority finding that the proprietary power of a municipality over its streets was not implicated by this case. Justice Freeman opined that a municipality could likely impose fees or "rent" for the use of streets to the extent that a private entity's use affected the normal use of streets.

The effect of this case will most likely be seen in the future as courts may narrow the application of this seemingly broad opinion.

Preemption of Home Rule Authority

Home rule municipalities received a long-awaited response to the question of the constitutionality of partial preemption of home rule powers when the Nevitt v. Langfelder case (No. 74405, issued September 23, 1993) was unanimously decided.

Nevitt, a firefighter for the city of Springfield, was injured in the line of duty. At the time of Nevitt's injury, Section 1 of the Public Employee Disability Act required home rule units under 1 million in population to

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continue to pay wages and benefits for one year to various public safety employees. (5 ILCS 345/1). The city, under its home rule authority, had provided for the payment of wages and benefits for injured firefighters pursuant to ordinance, but only for a 90-day period. The trial court found for the defendants, holding the population distinction contained within the Public Employee Disability Act was an arbitrary denial of equal protection. Thus, because the statute was found unconstitutional, plaintiff's appeal went directly to the Illinois Supreme Court.

The Court, in an opinion written by Chief Justice Miller, applying the rational basis test, found that the Public Employee Disability Act violated neither the equal protection guarantees nor the special legislation proscription of the Illinois Constitution. (Slip. Op. at 7). The Court cited several differences between public safety employees in home rule units with populations over 1 million and those in other jurisdictions. According to the Court, among these differences were the unique demands placed upon the public safety employees in Cook County and Chicago and the difference in bargaining power that employees of these governmental units enjoy. (Slip. Op. at 5). The Court noted that other employment-related statutes draw distinctions between employees of Cook County and Chicago and other employees of units of government in the State (Public Labor Relations Act, 5 ILCS 315/1; Worker's Compensation Act, 820 ILCS 305/1). (Slip. Op. at 6).

The issue of partial or selective preemption of home rule power was also addressed by the Court. The defendants argued that the General Assembly may not elect to preempt the home rule power of fewer than all home rule units. The Court found that nothing within Article VII, Section 6 of the Illinois Constitution, which sets forth the provisions regarding home rule preemption, requires that the General Assembly treat all home rule units alike for purposes of preemption. (Slip. Op. at 10). Moreover, the Court found nothing contained within the statements made at the 1970 Constitutional Convention evidenced that the intent of the framers was to preclude partial or selective preemption of home rule authority. (Slip. Op. at 12).

The effect of this case will be seen in future actions taken by the Illinois General Assembly. The validation of partial or selective preemption may result in more frequent use of this method of preemption as a method of getting legislation passed through the House and the Senate. •

Page 24 / Illinois Municipal Review / October 1993