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 which was distributed at the 80th Annual Conference of the Illinois Municipal League. 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 Both Janicki, Staff Attorney, at (217) 525-1220 if you have any questions.

I. ILLINOIS DECISIONS

A. ILLINOIS SUPREME COURT

a. Billboards/Home Rule

   Scadron v. The City of Des Plaines, 153 Ill. 2d 164; 606 N.E.2d 1154 (November 19,1992). The City of Des Plaines required a permit before a sign was erected within the City. The Des Plaines ordinance was stricter than the Highway Advertising Control Act (HACA). Pursuant to Supreme Court Rule 20, the Seventh Circuit certified three questions to the Illinois Supreme Court: (1) whether the Illinois HACA preempts the authority of home rule units to regulate billboards in areas subject to the Act. (2) If so, does Section 7 of the Act authorize home rule units to regulate outdoor advertising more restrictively than the criteria set forth in Section 6? (3) May home rule units totally exclude billboards in areas subject to the Illinois HACA? This court found that home rule authority is not preempted by the HACA and that home rule units can totally exclude outdoor advertising signs in areas subject to the HACA.

b. Franchise Fees

   AT & T v. Arlington Heights, Docket No. 72315, (August 26, 1993). The December 1992 opinion of this Court was overturned on rehearing. The Court held that municipalities do not have a proprietary interest in the public streets and may not raise revenue by requiring telephone companies to enter into franchise agreements.

c. Home Rule

   Nevitt v. Langfelder, Docket No. 74405, (September 23, 1993). This case addressed the constitutionality of Section 1 of the Public Employee Disability Act and, most importantly, dealt with the issue of partial preemption of home rule authority. The Act requires a public body to continue to pay a public safety employee for one year after an injury received in the line of duty. The Act preempts home rule powers for all home rule units except Chicago and Cook County.

The Supreme Court, in an opinion written by Chief Justice Miller, found that the Act does not violate the equal protection guarantee or the special legislation proscription of the Illinois Constitution by drawing a distinction among home rule units based upon population. More specifically, the Court held that the legislature retains broad authority to limit the exercise of home rule powers and Article VII, Section 6 of the Illinois Constitution does not contain any requirement that the legislature treat all home rule units alike for the purposes of preemption.The Court dismissed the comments of the Delegates at the 1970 Constitutional Convention as unnecessary and not determinative of the issues involved in this case. There were no dissenters.

d. Negligence

   Lee v. Chicago Transit Authority, 144 Ill. 2d 178; 579 N.E.2d 322 (October 22,1992). Plaintiff's decedent was electrocuted when, in an inebriated state, he urinated on the third rail of the Chicago Transit Authority track. Plaintiff's decedent was a trespasser, there were warning signs posted, and the entry to the right of way was boarded. The Supreme Court affirmed the trial court's award of $1.5 million in finding the defendant negligent.

e. Police Discipline

   Launius v. Board of Fire and Police Commissioners of the City of Des Plaines, 151 Ill.2d 419; 603 N.E.2d 477 (September 24, 1992). A police officer was discharged for disobeying the direct command of his superior and leaving his post during a flood to aid his family. The circuit court affirmed the discharge, the Appellate Court reversed. The Illinois Supreme Court reversed and found that discharge was an appropriate sanction and neither unrelated to the needs of service or arbitrary.

f. Police and Fire

   Corgiat v. Police Board of the City of Chicago, __ Ill. 2d __; 614 N.E.2d 1252 (May 20, 1993). Statute conferring rights in an administrative hearing does not apply to a request for a urinalysis. The court held that a urine sample is not an "admission", and a urinalysis is not an "examination" within the meaning of Chapter 24, Section 10-1- 18.1.

g. Tort Immunity Act

   Curatola v. The Village of Niles, 154 Ill. 2d 201; 608 N.E.2d 882 (January 28, 1993). Plaintiff sought to recover damages sustained when he stepped from the rear of his legally parked truck onto the street and fell into a pothole. The appellate court found for the defendant, holding that the defendant owed plaintiff no duty as an intended and permitted user pursuant to the Tort Immunity Act. This court reversed holding that Niles had a duty to maintain the street immediately around the plaintiff's legally parked vehicle.

B. ILLINOIS APPELLATE COURTS

a. Administrative Review/Standing

   Daley v. Zebra Zone Lounge, 236 Ill. App. 3d 511; 603 N.E.2d 785 (First District, October 16, 1992). Plaintiffs brought suit in administrative review. The trial court dismissed, finding that the mayor and the city did not have standing to bring suit. This court reversed and remanded finding that the statutory amendment giving a mayor authority, as local liquor control commissioner, to bring an action in administrative review applied retroactively.

b. Annexation

   In Re the Annexation of Approximately 280 Acres of Land to the City of Decatur __ Ill. App. 3d __; 615 N.E.2d 43 (Fourth District, June 3, 1993). The phrase "owners of record" contained in Section 7-1-2 of the Illinois Municipal Code does not include owners of the fee interest underlying the far one-half of a township road on the boundary of the territory sought to be annexed or the owners of mineral interests in a portion of the territory sought to be annexed.

   In Re the Matter of the Annexation of Certain Territory to the Village of Chatham, __ 111. App. 3d __; 614 N.E.2d 1278 (Fourth

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District, June 3, 1993). The circuit court denied annexation finding that; (1) the land sought to be annexed was not contiguous as required by Section 7-1-1 of the Code; and, (2) that petitioners did not constitute a majority of the landowners. This court found that the property proposed to be annexed was a "strip annexation" and thus the contiguity requirement was not met. The court also held that the fee owners of the outer half of township roads are not owners of record within the meaning of Section 7-1-2.

   In Re Petition to Annex Certain Property to the City of Wood Dale, __ Ill. App. 3d __; 611 N.E.2d 606 (Second District, April 8, 199.3). Petitioner's first petition for annexation was abandoned when the petitioner sent a messenger with a notice of withdrawal to the clerk's office.

   People ex rel. Village of Grayslake v. Village of Round Lake Beach, 242 111. App. 3d 750; 609 N.E.2d 1061 (Second District, March 5, 1993). Oath requirement contained in Section 7-1-8 of the Illinois Municipal Code is not mandatory. Petitioners signed petitions at home and not in the presence of a notary, but they believed they were signing the petitions under oath and attesting to their accuracy.

   SBL Associates v. Village of Elk Grove, First District Appellate Court, Docket No. 1-91-2787, (May 10, 1993). An action seeking declaratory relief and restitution for unjust enrichment based upon an annexation agreement which contained a recapture provision was properly dismissed. Annexation had not yet occurred, thus the recapture provision had not become operative.

c. Bidding

   O'Hare Express, Inc. v. City of Chicago, 235 Ill.. App. 3d 202; 601 N.E.2d 846 (First District, October 19, 1992). Plaintiff appeals a finding of the trial court that the City was not required to use a competitive bidding process pursuant to Section 8-10-3 of the Illinois Municipal Purchasing Act to procure airport bus shuttle service. (O'Hare Express had a five-year contract to provide shuttle service for Interim Terminal No. 4 which expired in 1990. In 1989, the City determined that shuttle service would not be necessary. The City then chose to re-let the O'Hare bus service contract as a cost reimbursement contract using a request for proposal process instead of sealed bids. In a cost reimbursement contract, a contractor is reimbursed monthly for costs. The City received three proposals. It did not award the contract to the plaintiff. Plaintiff filed for a temporary restraining order and a permanent injunction alleging the City was required to engage in competitive bidding.This court found that competitive bidding was required for the shuttle service contract, and the finding that the City did not have discretion to award the contract under Section 8-10-4 was against the manifest weight of the evidence.

d. Billboards/Home Rule

   Patrick Media Group, Inc. v. AD-EX, Inc., 240 Ill. App. 3d 487; 608 N .E .2d 427 (First District, December 30,1992). Plaintiff sought to enjoin defendant from maintaining four advertising signs on the ground that the signs violate provisions of the Chicago Municipal Code. Defendant claims that Section 11-13-1 of the Illinois Municipal Code which states that "This Amendatory Act of 1971 does not apply to any municipality which is a home rule unit" renders Section 11-13-15 inapplicable to violations of a City of Chicago ordinance. Section 11-13-15 permits a private party to institute a lawsuit to enforce an ordinance. This court found that the language in Section 11-13-1 does not apply to the entire section so that plaintiff was not foreclosed from pursuing its private action. The court limited the language of Section 11-13-1 to the substantive material enacted in 1971, when the language in question was added.

   Universal Outdoor, Inc. v. City of Des Plaines, 236 Ill. App. 3d 75; 603 N.E.2d 585 (First District, September 11, 1992). The City and Universal entered into a settlement agreement which permitted Universal to construct twelve signs at specific locations within the City. The City then sought to vacate the trial court's judgment and to have the settlement declared null and void. The court dismissed the petition to vacate and the motion to nullify the agreement. The City arrested that by entering into the settlement agreement, it improperly waived the size and height regulations contained in the City's ordinance, that the agreement was a variance without compliance with the notice and hearing requirements. This court affirmed the dismissal of the City's motion, finding that the City offered no valid reason for its failure to assert the "hearing and notice" defense earlier and that the City has failed to demonstrate that this argument could not reasonably have been disclosed prior to the time judgment was entered.

e. Condemnation/Res Judicata

   County of Wabash v. Clarence Partee, 241 Ill. App. 3d 59; 608 N.E.2d 674 (Fifth District, February 11, 1993). In the 1970s, the City of Mt. Carmel sought to condemn land outside the city limits for highway purposes. The Supreme Court affirmed the trial court's decision to dismiss the complaint. In November of 1988, the City and County of Wabash entered into an intergovernmental agreement whereby the City and County exchanged jurisdiction of certain property so that the County could proceed to complete a highway (this was the same property involved in the former lawsuit). The County, after unsuccessful attempts to obtain the property by negotiation, filed a complaint for condemnation which alleged the County was authorized to obtain fee simple title pursuant to Section 5-801 of the Illinois Highway Code. The respondents filed a traverse and motion to dismiss. The County adopted a resolution which stated, among other things, that the County was by resolution ratifying and confirming all prior actions regarding condemnation of the property. The trial court found that the County had established a prima facie case as to the facts of public use and legal right to take the property by condemnation, that the County's suit was not barred by res judicata or collateral estoppel, and that the amount of property to be condemned was not excessive. Respondents appealed claiming the suit was barred by res judicata. This court found that the intergovernmental contract did not create privity between the City and County for purposes of this suit, that the parties and issues of the two suits were not the same, and thus, res judicata did not apply.

f. Coterminous City-Townships

   Nameoki Township v. Granite City Township and the City of Granite City, 242 Ill. App. 3d 141; 610 N.E.2d 111 (Fifth District, February 10, 1993). Prior to 1988, Granite City and Granite City Township were coterminous. In 1987, Granite City annexed a portion of Nameoki Township (the Gorbe subdivision). A referendum was held, and it was determined that the Gorbe subdivision would remain part of Nameoki Township. Granite City annexed additional territory in Nameoki and Chouteau Townships. The plaintiff townships filed a declaratory judgment action asking the court to declare that the property annexed by Granite City after 1988 was not under the jurisdiction of Granite City Township. The trial court found that Granite City and Granite City Township boundaries have remained coterminous despite the change in boundaries. Plaintiffs appealed. Plaintiffs argued that as a result of the 1988 referendum, Granite City and Granite City Township were no longer coterminous, and that, therefore, any parcels annexed by the City after 1988 were no longer automatically transferred to Granite City Township. This court reversed, finding that Granite City and Granite City Township were no longer coterminous after the 1988 referendum. Coterminous status was maintained, however, for purposes of the method of selecting officers and operating the city — township. Territory annexed after 1988 was not automatically made part of the township.

g. Council Procedure

   Monge v. City of Pekin, __ Ill. App. 3d __; 614 N.E.2d 482 (Third District, May 10,1993). Plaintiffs alleged that the city council approved the purchase of certain real estate owned by the plaintiffs and also approved a contract for private development with the plaintiffs. Plaintiffs alleged that the city entered into written contracts, but failed to perform under them. Defendants moved to dismiss, alleging

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the contracts were ultra vires and were nullified by resolutions rescinding and repealing them. The contracts were approved on April 15, 1991. Plaintiffs alleged that the city council acted improperly by holding a second meeting on April 15, 1991. On April 15, 1991, the council met and approved the contracts, and adjourned sine die at 6:55 p.m. At 7:03, a regular meeting of the council was called to order where the council received and filed the oaths and bonds of new council members, The resolutions rescinding the contracts were approved at this meeting. The trial court held that the terms of the former council members expired before the first regular or special meeting after the April 2 election and the actions approving the contracts taken on April 15 were without authority. This court reversed and remanded finding that the old officers continued to hold office, at least de facto when they met at 6:30 p.m.

h. Deferred Compensation

   Juan Valasqez v.City of Chicago, First District Appellate Court, Docket No. 1-92-0876, (May 10, 1993). Plaintiffs, city employees, filed a class action suit against the City of Chicago alleging that the City improperly failed to credit them and other past and current participants in the City's deferred compensation plan with interim interest which accrued between the time of withholding and payment to the plan's administrator for investment. The trial court dismissed the complaint for failure to state a cause of action. Plaintiffs appealed. This court affirmed finding no requirement or duty on the part of the City under the plan to credit the claimed interim interest.

i. Disconnection/Home Rule

   Citizens for Communication v. The Village of Lake Barrington, Second District Appellate Court, Docket No. 2-92-0278, (February 10,1993). Citizens for Communication (CFC) owns a 20-acre tract of land within the Village. Plaintiff's petition to disconnect alleged that the disconnection would meet all of the statutory requirements. The defendant Village claimed that the petition was invalid because the Village had not consented to it. The Village claimed that because it was a party to a "declaration of conservation easement" it was an "owner of record" of the property. The trial court dismissed the petition. CFC appealed. This court reversed, concluding that the Village was not an "owner of record" of the property. The court held that the purpose of the disconnection statutes is taxpayer relief and because a municipality is a "tax eater" and not a "tax payer" it could not be considered a property owner under the statute. Moreover, according to the court, the interest held by the Village in this case would never be considered "ownership".

   LaSalle National Trust v. Village of Mettawa, Second District Appellate Court, Docket Nos. 2-92-0679, 2-92-0688. Pursuant to its home rule powers, Mettawa passed an ordinance which required a majority of the village voters to vote on the question of disconnection. The trial court found this ordinance to be unenforceable because it did not pertain to the village's government and affairs, it encroached upon the statewide concern with establishing municipalities, and it encroached upon the statewide concern with the efficiency of the court system. This court affirmed, finding Mettawa's ordinance invalid and unenforceable because it did not pertain to a matter of local government and affairs, and it improperly interfered with the state judicial system.

j. Extraterritorial Powers

   Harris Bank of Roselle v. Village of Mettawa, 243 Ill. App. 3d 103; 611 N.E.2d 550 (Second District, March 22,1993). Plaintiff is a trustee and holds legal title to an 84 acre parcel of unincorporated land located outside, but adjacent to, the boundary of Mettawa. The subject land is bordered by 1-94, Illinois Route 60, and Bradley Road. Bradley Road is the sole means of access to plaintiff's property, which is zoned for single family residences. The Village approved a proposal for construction of a residential housing project on land adjoining the plaintiff's property. The development was to implement a wastewater treatment system. Defendant then passed an ordinance wherein it made it unlawful for the plaintiff to treat sanitary wastewater on their land. Plaintiff filed a petition to rezone the property to permit its development as an office campus and also requested a conditional use permit from the county board to build a wastewater land treatment facility. Defendants passed an ordinance protesting and objecting to the rezoning and the conditional use permit. The Village then passed an ordinance stating that Bradley Road may only be accessed by single family residential properties. The Lake County Board voted to deny the petition for rezoning and conditional use permit. Plaintiff filed suit.The trial court granted summary judgment for the plaintiff finding that the defendant lacked authority to pass ordinances regulating matters outside the municipality and that defendant's ordinance deprived plaintiff of access to property without due process of law. This court found that plaintiffs were "interested parties" and thus had standing to challenge defendant's ordinances, that the decisions made by the county did not render this action moot, and that plaintiff was entitled to summary judgment on the remaining issues.

k. Final and Appealable Order

   LeRoy Martin v. Jesse Cajda and the Police Board of the City of Chicago, 238 Ill. App. 3d 721; 606 N.E.2d 566 (First District, November 24, 1992). A disciplinary proceeding was initiated against the defendant for violating the residency ordinance of the City of Chicago which obligates employees and officers of the City to reside within the corporate boundaries. The defendant's wife owned a home in Berwyn, and defendant claimed he resided at an address in Chicago. Defendant's mother and brother also resided at the Chicago address. The hearing officer found that defendant violated the residency ordinance, and defendant was suspended. On administrative review, the trial court found the board erred in not discharging the defendant. Defendant was discharged and then appealed. Plaintiff claims his notice of appeal was untimely. On March 15, 1991, the Court had entered an order reversing the sanction imposed by the Board and remanding the cause to the agency to enter an order of discharge. On June 14, defendant was discharged. A second order was issued on July 9, 1991, and the trial court found the Board had complied with its previous order. Defendant took the position that he appealed from the July 9, 1991 order. This court found that defendant's notice of appeal was untimely as the March 15,1991 order was final and appealable.

1. Freedom of Information Act

   Carbondale Convention Center, Inc. v. City of Carbondale, —— Ill. App. 3d __; 614 N.E.2d 539 (Fifth District, May 27, 1993). Carbondale Convention Center sued the City of Carbondale for breach of contract. The matter was settled, and the trial court entered an order of dismissal which contained a provision prohibiting disclosure of the terms of the resolution. Defendant denied the Southern Illinoisan's request under the Freedom of Information Act to obtain a copy of the settlement relying on the nondisclosure provision. The trial court found that Section 7(1) (bb) of the Freedom of Information Act exempted the settlement agreement from disclosure. Defendant contended that the language in the trial court's dismissal order constituted State law and thus the agreement was exempt. This court reversed, finding that because defendant requested the gag order, finding the agreement exempt from disclosure would violate the purpose and intent of the Act. According to the court, the exemptions contained in the Act are shields and not swords. Defendant claimed two other exemptions, but did not provide any detailed justification for their claims.

m. Incorporation

   In Re Incorporation of the Village of Godfrey, 243 Ill. App. 3d 915; 612 N.E.2d 870 (Fifth District, April 13,1993). A petition to form a new municipality and an affidavit and a copy of the published notice of the intent to file the petition were filed in 1990 in the circuit court. The court certified the question of incorporation for submission to the electors. In April of 1991, the voters voted in favor of

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incorporation. The court entered an order setting the election of the municipal officers for November 5,1991. The appellants objected to the court's order setting the election of the municipal officers and to the court's order submitting the question of incorporation of the Village. Appellant claimed that the court lacked jurisdiction to issue these orders. Appellants contended that the court exceeded the statutory authority of Section 28-2 of the Election Code when it set the referendum of the question of incorporation because the notice of the intention to file the petition to incorporate was defective under the statute. The incorporators did not include a certain paragraph contained in the notice form of the statute which required that municipal officers be elected on the same day as the referendum. The incorporators contended that under the Illinois Municipal Code, a two-step process is provided. First, the referendum of incorporation is considered and second, after incorporation, the court must order the election of the officers.

This court found that simultaneous elections were not required and the incorporators' notice was correct. Appellants also argued that the court exceeded its jurisdiction by considering the incorporators' petition for election of officers ex parte and without notice" or a hearing. This court found that the lower court's jurisdiction arose from Section 2-3-7 of the Illinois Municipal Code which does not require notice or a hearing.

n. Labor/Political Activity

   Evanston Firelighters Association v. The Illinois State Labor Relations Board and the City of Evanston, 241 Ill. App. 3d 725; 609 N.E.2d 790 (First District, November 30, 1992). The Firefighters Association appeals from a decision of the Illinois State Labor delations Board which held that the issuance to all city employees of a memorandum regarding restrictions on political activity of city employees did not constitute an unfair labor practice under the Illinois Public Labor Relations Act. Evanston is a managerial form municipality. In early 1988, union members formed a PAC to get firefighters in political issues that affected their employment. The memorandum at issue reminded all city employees that using their title or office during political activity was prohibited. City employees identifying themselves as members of a labor organization was not prohibited by the memorandum. This court reversed, holding that a blanket proscription against all city employees identifying their positions, regardless of the circumstances, is not supported by the language of the city's ordinance and is not justified by an overriding interest of the city.

o. Laches

   David Van Milligan v. The Board of Fire and Police Commissioners of the Village of Glenview, 241 Ill. App. 3d 807; 609 N.E.2d 822 (First District, January 20, 1993). Plaintiff was discharged in 1988 for committing assault, battery, threatening a citizen, and the use of excessive force. Plaintiff sought administrative review of the discharge in circuit court. The circuit court affirmed the discharge and plaintiff appealed claiming: 1) that the doctrine of laches bars defendant's action against the plaintiff; 2) that it was improper to apply the doctrine of collateral estoppel to the results of the federal civil trial so as to prevent plaintiff from receiving an evidentiary hearing before the Board on the facts forming the basis for his discharge; and, 3) the Board's decision was against the manifest weight of the evidence. This court found that defendant lacked diligence in asserting its claim against the plaintiff and that the plaintiff was prejudiced by the delay in bringing the charges, thus the doctrine of laches barred defendant's action against the plaintiff.

p. Landlord/Tenant

   The City of Evanston v. William O'Leary, F'irst District Appellate Court, Docket No. 1-90-3171, (March 16, 1993). The City sued two landlords for violating the Evanston Residential Landlord and Tenant Ordinance by locking two tenants out of their rooms for being five days behind on their rent. The rooming house in question was granted a zoning variance subject to conditions restricting rent increases for two years. The Evanston ordinance provided that "It is unlawful for any landlord or any person acting at his direction to knowingly oust or dispossess . . . any tenant from a dwelling unit without authority of law, by plugging, changing, adding, or removing any lock or latching device." The trial court found that the ordinance

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did not apply to the dwelling in this case because it was a rooming house which is classified as a non-residential land use under the city zoning ordinance. This court reversed finding the trial court's construction directly opposed the statutory purpose of the Landlord and Tenant Ordinance. The fact that the City considered a land use "non-residential" for its zoning ordinance cannot deprive the City of the power to protect renters from unreasonable evictions.

q. Liquor Control

   Carbondale Liquor Control Commission v. State of Illinois Liquor Control Commission, 244 Ill. App. 3d 190; 614 NE.2d 114 (Fifth District, June 10,1993). Beer Barn, Inc. and Saluki Liquor, Inc. applied for retail package-liquor licenses and were denied. The State Liquor Control Commission reversed the denial and ordered that licenses be issued. The Carbondale Commission filed a complaint for administrative review. The trial court dismissed the complaint for lack of standing, and the appellate court affirmed. On remand, the Carbondale Commission still refused to issue the licenses. The circuit court granted defendant's motion to enforce judgment and ordered the issuance of licenses. The Commission appealed, contending the license period applied for had expired and thus the cases were moot when the trial court granted the motion to enforce judgment. This court found that the public interest exception to the mootness doctrine applied.The State Commission and the court had an interest in seeing to it that their mandates were carried out and were not thwarted by delays and situations which may inevitably evade review. Moreover, the trial court did not err in granting the motion to enforce judgment. The court was merely mandating that the Carbondale Commission grant the physical custody of the licenses to the appellees.

   Maybell v. Illinois Liquor Control Commission, __ Ill. App. 3d __; 614 N.E.2d 1370 (Fifth District, June 14, 1993). Defendant, an Amoco gasoline and convenience store, filed an application for a Class D liquor license on August 8,1988. Defendant's application was denied because all three Class D liquor licenses had been issued. On October 28, 1988, defendant reapplied for a Class D license. At this time, one was available. The application was denied because a city policy did not permit liquor licenses to be given to convenience stores that sold gasoline. In December of 1988, the city reduced the number of Class D licenses to two. On February 7,1989, Amoco reapplied for a Class D license and was denied because all of them had been issued. Amoco applied again and backdated the application to October 28, 1988. The application was found deficient and no licenses were available. Amoco applied again on August 14, 1989, and the city denied the application on the same basis as before. Amoco appealed to the Liquor Control Commission. The city moved to dismiss on the basis that no licenses were available. The Commission found that Amoco had applied when a license was available and that the city must issue them a license.

The plaintiff filed an administrative review complaint. The trial court found that because appeals of rulings denying the issuance of a liquor license must be filed within 20 days of the denial, the only application before the Commission was the last one. Thus, the Commission erred in basing its decision on the second application. The court also found that the Commission erred by making a conclusion of law (that Amoco was qualified to obtain a license). This court held that the local liquor control commissioner, pursuant to Section 7-11 of the Liquor Control Act, has standing to file a complaint for judicial review. Plaintiff also contended that the issues involved in the instant case are moot because the license applied for would have expired. This court found that an exception to the mootness doctrine applied. Moreover, the trial court did not err in determining that the Commission's order contained a conclusion of law which was against the manifest weight of the evidence. The order of the trial court was affirmed.

   Seul's, Inc. v. State of Illinois Liquor Control Commission, 240 Ill. App. 3d 828; 608 NE.2d 530 (First District, December 31, 1992). Plaintiff was found in violation of a village ordinance prohibiting the

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sale of liquor to persons under 21 years of age. Plaintiff claimed entrapment as a defense at the administrative hearing. The State Liquor Control Commission found that the local commissioner acted properly at the circuit court level. Plaintiff's complaint was dismissed. Plaintiff appealed claiming the trial court improperly denied plaintiff's motion for summary judgment, improperly dismissed the complaint, and the commissioner acted outside of the scope of his administrative authority. This court found that the plaintiff was not afforded a hearing on the motion for summary judgment as required by statute. The trial court's order denying plaintiff's motion for summary judgment was reversed.

r. Municipal Corporations

   John Burns Construction Company v. The City of Chicago, 242 Ill. App. 3d 614; 609 N.E.2d 842 (First District, September 11, 1992). Plaintiff sought damages for delay in a construction project due to the City's failure to timely acquire the necessary rights-of-way and easements. The contract had a "no damages for delay" clause. The trial court dismissed the complaint for failure to state a cause of action. This court found that the case was dismissed prematurely and that plaintiff should be granted discovery for further factual development to determine if an exception to the "no damages for delay" clause was applicable.

s. Municipal Liability

   Delores F. Birck and Richard Birck v. City of Quincy, 241 Ill. App. 3d 119; 608 N.E.2d 920 (Fourth District, February 11, 1993). Plaintiff (Delores Birck) tripped on a sidewalk where there was a 1 7/8 inch difference in the levels between two concrete slabs. After balancing the burden on the municipality to inspect or repair miles of residential sidewalk with the foreseeability of harm to result from the defect described in this case, this court found the defect was too minor to be actionable at law.

   Margaret Grove v. City of Park Ridge, 240 Ill. App. 3d 659; 608 N.E.2d 421 (First District, December 30, 1992). A municipality owes a duty to a pedestrian walking to or from a legally parked vehicle. This duty only extends to pedestrians walking to or from the curb area alongside the legally parked vehicle and not to pedestrians crossing the roadway to get to or from the vehicle. On interlocutory appeal, the order denying defendant's motion for summary judgment was affirmed, and the case was remanded.

   Audrey Schoenbeck v. DuPage Water Commission, 240 Ill. App. 3d 1045; 607 N.E.2d 693 (Second District, January 29, 1993). Plaintiff brought suit after her husband died in an explosion at a work site. The Commission had entered into a contract with Naperville wherein Naperville was required to build a pressure adjusting station in order to receive Lake Michigan water. Plaintiff's decedent was working on the construction of the pressure adjusting system when he died. Plaintiff characterized 'Naperville as an independent contractor, building the station for the Commission. Plaintiff claims the Commission had an affirmative duty to protect against the work site accidents. This court found that the Commission owed no duty to plaintiff's decedent. Any duty that the Commission had would only extend to its own waterworks system, not that of the City of Naperville.

t. Negligence

   Geelan v. City of Kankakee, 239 Ill. App. 3d 528; 605 N.E.2d 1015 (Third District, December 14, 1992). Plaintiff's decedent died from injuries involved in an automobile collision with an underpass pier. Plaintiff alleged that defendant was negligent in failing to provide and maintain adequate and proper lighting under the underpass and failing to maintain downlights to illuminate the underpass pier. The trial court granted summary judgment for the defendant based on no causal relationship between the alleged negligence and the death of the plaintiff's decedent. This court affirmed the trial court, concluding that the plaintiff would be unable to present any evidence, other than speculation, as to why the decedent hit the underpass.

   Roselyn M. Gilmore v. City of Zion, 237 Ill. App. 3d 744; 605 N.E.2d 110 (Second District, December 10, 1992). Plaintiff, a seven- year-old, alleged that a motor vehicle driven by an agent of the city struck her as she crossed an intersection. The city filed a third party complaint for contribution against the Zion School District for failing to have a crossing guard present. The third party complaint was dismissed pursuant to Section 3-108 of the Local Governmental Employees Tort Immunity Act. The city filed an amended third party complaint alleging willful and wanton misconduct on the part of the school district. This complaint was dismissed for failure to state a cause of action. The city then filed a second amended third party complaint alleging willful and wanton misconduct for failure to have a crossing guard present. The trial court dismissed the second amended third party complaint for failure to state a cause of action. The city then tiled this appeal. The city argued on appeal that: 1) the voluntary provision of a crossing guard created a duty to maintain a crossing guard; and, 2) the school district owed a duty to provide a crossing guard at the intersection. This court found that the school district owed no duty to the plaintiff to provide a crossing guard and that even if a duty existed, the factual allegations were insufficient to state a cause of action for willful and wanton misconduct.

   Dennis Harris v. Chicago Housing Authority, 235 Ill. App. 3d 276; 601 .N.E.2d 1011 (First District, September 9, 1992). Plaintiff, a Chicago firelighter, suffered severe injuries while responding to a fire at the Robert Taylor Homes. The fire occurred on the fourth floor of the building, and there was no water pressure present when plaintiff attempted to connect fire hoses. The trial court dismissed die case finding that a fireman can only recover where his injuries are caused by an act of negligence which is independent of the negligence which caused the fire itself. The plaintiff appealed claiming the failure of the defendant to maintain operable pipes was an independent act of negligence. This court reversed and remanded, finding that if it is proven that the Chicago Housing Authority acted in violation of a municipal ordinance in failing to maintain an operable pipe system, it is an act of negligence independent of any negligence which caused the fire.

   Leone v. City of Chicago, 235 Ill. App. 3d 595; 601 N.E.2d 942 (First District, September 4, 1992). A Chicago police officer stopped the plaintiff for driving with an expired license plate. Plaintiff stopped in an active traffic lane. The officer told plaintiff to get out and look at her plates. When plaintiff got out of her car to look at the plates, a car struck the rear of the police car and threw it forward, trapping the plaintiff and causing her severe injuries. At the trial court level, the City was held liable for negligence. This court found that the plaintiff's injury was a probable consequence of the officer's negligent parking of his police vehicle, and directing plaintiff to stand between the cars to observe the expired plate. The plaintiff's injury was reasonably foreseeable, and the officer breached a special duty of care to plaintiff.

   Milagros Medina v. City of Chicago, 238 Ill. App. 3d 385; 606 N.E.2d 490 (First District, November 18, 1992). Plaintiffs decedent was shot by a city police officer. At the circuit court level, the jury found the defendants guilty of willful and wanton misconduct and, finding plaintiff's decedent 50 percent contributorily negligent, awarded $352,000 against the defendants. Both sides appealed. Defendants claimed the evidence did not support a finding of willful and wanton misconduct. This court affirmed the finding of willful and wanton misconduct and reversed the portion of the judgment reducing the plaintiff's award in light of the contributory negligence.

u. 911

   Stella Shefts v. City of Chicago, 238 Ill. App. 3d 37; 606 N.E.2d 90 (First District, September 30, 1992). Plaintiff called 911 to secure an ambulance for her husband who was having a heart attack. The operator told plaintiff that her husband would be taken to a hospital seven miles away instead of the closest hospital which was three miles away. Plaintiff then contacted a private ambulance company, and

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her husband died en route to the hospital. Plaintiff alleges the City's failure to send an ambulance deprived her husband of medical attention for at least 30 minutes and was the proximate cause of his death. The lower court entered summary judgment for the City. This court affirmed. Plaintiff had refused to have the 911 dispatcher send an ambulance.

v. Ordinances

   City of Joliet v. Franklin, __ Ill. App. 3d __; 613 N.E.2d 766 (Third District, April 2.3, 1993). Defendant appealed from a sentencing of 60 days of supervision and a $50 fine for violating a municipal trespass ordinance. The defendant performed an act at the "Taste of Joliet". He was not booked to perform. Defendant was told to leave after his act began to get rude, but he did not. Defendant was then arrested for trespass. On appeal, the defendant contends the trespass ordinance violated his First Amendment rights because his performance was stopped on the basis of its content. This court affirmed the trial court, finding a public entity has the power to preserve the property under its control for the use to which it is lawfully dedicated.

   Kurr v. Town of Cicero, 235 Ill. App. 3d 528; 601 N.E.2d 1233 (First District, September 25, 1992). Plaintiffs alleged they were beneficial owners of property located in Cicero. Prior to the time the plaintiffs purchased the property, the front building was renovated into apartments and the garage was converted into apartments. Plaintiffs claimed tile work was done pursuant to permits and in accordance with Cicero's ordinance. In 1989 they wanted to sell the property, and they applied for a certificate of compliance under ordinance which was denied. The plaintiffs then sought mandamus relief. Defendant counter-claimed that plaintiffs' property violated Cicero's ordinance because there were two buildings on one lot, there was no permit to convert the garage, and the front building only had one means of egress. They also alleged that the garage should be torn down because it had an assessed value of less than $2,000 in 1976. The trial judge ordered that the plaintiffs be issued a certificate of compliance, finding that the language of the ordinance requiring a "detailed report" of violations meant that the report had to be written. On appeal, defendant argued that a written report was not necessary and that oral communications were sufficient .This court found that summary judgment at the trial level was improper as the question of whether plaintiffs' property complied with the town's ordinance is an undecided question of fact.

   Town of Normal v. Seven Kegs, Two Tappers, and Two Barrels, 234 Ill. App. .3d 715; 559 N.E.2d 1384 (Fourth District, September 17, 1992). Pursuant to a municipal ordinance, McLean County Circuit Court ordered the forfeiture of seven kegs, two tappers, and two ice barrels which had been seized by the Normal police after being used in the unlawful sale of alcohol. Intervenor, B & J Sales, Inc., appealed the forfeiture, contending that Normal exceeded its home rule powers and that the ordinance deprived B & J of its property without due process. This court found that Normal had not abused its home rule powers. The ordinance was an appropriate local response to a local problem. The subject of alcohol control is properly addressed by both State and local authorities. This Court also found that the ordinance did not violate due process in that it applied to innocent owners not in privity with the wrongdoer.

   Village of Arlington Heights v. Morton Kantoff, 238 Ill. App. 3d 57; 606 N.E.2d 142 (First District, October 22, 1992). Defendant purchased land which was to be used as a parking lot pending development. The Village brought suit against defendant for failure to improve his property which was agreed to by the parties. The purchase ordinance stated that the land "will be used by the purchaser for parking while waiting for development." This court found that the ordinances were valid and that the defendant should comply.

   The Village of Kildeer v. Edward C. LaRocco, 237 Ill. App 3d 208; 603 N.E.2d 141 (Second District, November 6, 1992). Defendant had been charged with violating a municipal ordinance prohibiting overweight vehicles on village roads. The trial court granted a directed finding for the defendant holding that a truck must be weighed in a single draft and not on an axle-by-axle basis. Municipalities may regulate vehicle weight on roads within their jurisdiction. The ordinance in question provided that no vehicle shall be operated on village roads when "the gross weight on the road surface through any axle thereof exceeds twelve thousand pounds." The road in question was posted with a six ton per axle limit. Federal law requires the commercial weighing of a vehicle to be done on a single draft. This court found that weighing on an axle-by-axle basis was acceptable and that the plaintiff had made a prima facie case against the defendant. Therefore, a directed finding was inappropriate.

w. Pensions

   Danko v. Board of Trustees of the City of Harvey Pension Board, 240 Ill. App. 3d 633; 608 N.E.2d 333 (First District, December 28, 1992). Plaintiff, a police officer, was denied a disability retirement pension by the Pension Board because a light duty position existed which he could perform. The circuit court reversed. The Board appealed. Plaintiff claimed that two of the Board members were biased and unable to give him a fair and impartial hearing. One of these members was Chief Craves, who had previously suspended plaintiff. Several hostile exchanges occurred during the hearing. This court concluded that the Board was biased against the plaintiff, and the Board's decision to deny plaintiff a disability retirement pension was against the manifest weight of the evidence. Judgment of the circuit court was affirmed.

x. Personal Injury

   Koffski v. The Village of North Barrington, 241 Ill. App. 3d 479; 609 N.E.2d 364 (Second District, February 22, 1993). Plaintiff sought damages for personal injuries sustained in a car accident. Plaintiffs filed two separate actions, one in state court and one in the United States District Court. Plaintiffs voluntarily dismissed the state court action, then sought to vacate the order dismissing the case after the federal action was dismissed for lack of subject matter jurisdiction, and plaintiffs appealed to the Seventh Circuit. Defendants moved to dismiss plaintiffs' 2-1401 motion to vacate, and the trial court granted the motion. Plaintiff appealed. Defendant then filed a 2-619(a)(3) motion to dismiss the appeal. This court found that a 2-619 motion to dismiss was not intended for use in the appellate court since "the time for pleading", as provided in the statute, had long passed. This court affirmed the trial court's dismissal of plaintiffs' 2-1401 motion to vacate its earlier order granting voluntary dismissal. Section 13-217 permits only a single refiling after a voluntary dismissal. Plaintiffs refiled in federal court following the voluntary dismissal.

y. Police and Fire Discipline

   Clark v. Board of Fire and Police Commissioners of the Village of Bradley, __ Ill. App. 3d __; 613 N.E. 2d 826 (Third District, May 14, 1993). Four charges were brought against Officer Clark: official misconduct, obstruction of justice, bribery, and conspiracy. At the hearing, Officer Clark objected to the participation of two members of the Board. He argued that they could not serve because they had not posted a bond as required by statute. The Board found the plaintiff guilty, and he was terminated. The trial court upheld the Board's decision. This court held that the alleged failure of the two commissioners to post a bond did not deprive the Board of its authority to render a decision. Moreover, this court held that the standards to be applied by the Board was the preponderance of the evidence and not the standard of clear and convincing evidence as suggested by the plaintiff.The Board's decision was neither arbitrary nor unreasonable or against the manifest weight of the evidence.

   Norman v. The Board of Fire and Police Commissioners of the City of Zion, __ Ill. App. 3d __; 614 N.E.2d 499 (Second District, May 20, 1993). The plaintiff, a police officer, was injured while on duty in September of 1989. The plaintiff injured his back while attempting to break up a fight. Whether or not plaintiff could work was in question, and doctors gave conflicting recommendations. In November of 1990, plaintiff was ordered to return to work. Plaintiff did not report to work, and charges were filed with the board of fire

November 1993 / Illinois Municipal Review / Page 21

and police commissioners who discharged the plaintiff. Plaintiff sought administrative review. The trial court remanded the matter for a hearing on aggravation and mitigation. Following this hearing, the sanction of discharge was again imposed. The plaintiff appealed, and the trial court directed the board to enter a lesser sanction. Defendants appealed. This court found that there was no just cause to terminate the plaintiff since the plaintiff believed that following the chief's orders carried the possible risk of a permanent disabling injury.

z. Preliminary Injunction/911

   Louis Vasquez, Charles Amati, Anthony Olszewski, and Others Similarly Situated v. The City of Woodstock, 242 Ill. App. 3d 766; 611 N.E.2d44 (Second District, March 26, 1993). In 1982, the Woodstock police department operated two 911 lines and six-seven digit lines. One line, 338-7799, was installed for personal use by police department personnel and was unlisted. All lines, except 338-7799, were tape-recorded. In late 1991, defendant began a changeover to an enhanced 911 system. It was discovered then that some emergency calls were being received on 338-7799. This number had mistakenly been programmed into the speed dialer as an emergency number. On August 10,1992, plaintiff Amati called 338-7799 and spoke with Bruce Hillstrom and allegedly made a derogatory reference to a police sergeant. This conversation was taped. The Chief of Police informed Officer Vasquez about this incident and several others that had occurred and asked Vasquez to relay this to the membership of the Fraternal Order of Police for Woodstock Lodge 191. Plaintiffs moved for a temporary restraining order requiring defendant to preserve tape recordings of calls on 338-7799. Plaintiffs also alleged that recording personal calls on 338-7799 violated the Eavesdropping Act as well as the fifth and fourteenth amendments to the United States Constitution. The trial court entered a preliminary injunction to preserve the tapes but denied to halt further taping of 338-7799. This court found that the trial court did not abuse its discretion in granting the preliminary injunction, the plaintiffs only needed to show that they raised a "fair question" about the existence of their right and that the court should preserve the status quo until the cause can be decided on the merits.

aa. Public Employment

   Calumet City Professional Firefighters Association, et al. v. Robert Stefaniak, et al., 243 Ill. App. 3d 254; 612 N.E.2d 29 (First District, February 16, 1993). Bonic and Rybarczyk were firefighters for Calumet City who were hired on March 1, 1991. On July 15, 1991, they were informed that they were on temporary layoff status. Plaintiffs claimed the layoffs were illegal because a city ordinance appropriated funds for 27 firefighters, and firing the plaintiffs would cause the number to fall below 27. Plaintiffs also claimed the layoffs were contrary to the provisions of the Illinois Fire and Police Commissioners Act. Defendants moved to dismiss claiming the city appropriation ordinance did not require 27 firefighters to be employed by the city. Plaintiffs contended that the mayor violated Section 3-11-6 of the Municipal Code which requires the mayor to ensure that all "ordinances are faithfully executed." Defendants' motion to dismiss was granted by the trial court. This court affirmed holding that an appropriation ordinance did not, by itself, create 27 positions. Plaintiffs did not plead the specific ordinance which creates the position of firefighters. In addition, the Illinois Fire and Police Commissioners Act is not intended to impinge upon a city's inherent right to make good faith reductions in force for solely economic reasons. Section 10-2.1-18 of the Act provides that layoffs due to reductions in force shall comply with seniority, and this Section was followed. The statute provides no procedural format for layoffs, thus the mayor may order a reduction.

   Mark Faustrum v. The Board of Fire and Police Commissioners of the Village of Wauconda, 240 Ill. App. 3d 947; 608 N.E.2d 640 (Second District, February 5, 1993). Plaintiff's employment as a police officer with the Village was terminated. Plaintiff allegedly engaged in conduct involving the improper use of a firearm while he was a student at the Police Training Institute. The Director of the Institute removed plaintiff from the course. The plaintiff was then terminated by Wauconda for failure to complete training and failing to meet the expectations of the Village. A hearing was not held. Plaintiff claims he should have been afforded a hearing on the charges. This court found that the plaintiff, a probationary employee, was not entitled to a pro-termination notice or hearing.

   Winston E. Ragon v. Gerald L. Daughters, 239 Ill. App. 3d 533; 605 N.E.2d 1105 (Third District, December 22,1992). In May of 1990, plaintiff was hired by the Creve Coeur Police Department as a probationary police officer. Plaintiff was to attend training classes from September 30 to December 14. On October 1, plaintiff called

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defendant and informed him that he had to be in court on October 3. Defendant arranged for plaintiff to be re-admitted to classes after his court appearance. On October 4, plaintiff called and said he needed to be in court again. Defendant re-enrolled plaintiff in a January session. In January, plaintiff again told he could not attend because of personal problems. Defendant filed charges against plaintiff with the Board alleging neglect of duty, disobedience of orders, and absence from duty without leave. Plaintiff was found guilty and his employment was terminated. Plaintiff contends he was not fired for cause as required by Section 10-21-17. This court affirmed the discharge of plaintiff. A probationary officer may be discharged for any reason and is not entitled, to a hearing or prior written notice of charges.

   Rinchich v. Village of Bridgeview, 235 Ill. App. 3d 614; 601 N.E.2d 1202 (First District, September 22, 1992). A village fireman was promoted to the rank of lieutenant. He then resigned and was rehired at age 37 as a fire prevention officer (a civilian position created by ordinance). This position was later cut by the Village and Rinchich was made a fireman. He sued. The Village's motion for summary judgment was granted. The Appellate Court found that the office of fire prevention officer could be abolished. The case was remanded to determine if the office was abolished in bad faith.

   Cara Tate v. Police Board of the City of Chicago, 241 Ill. App. 3d 927; 609 N.E.2d 762 (First District, January 4, 1993). Dismissal of a police officer was proper when the officer was suspected of DUI, refused to take a Breathalyser test, and refused to provide a urine sample. Plaintiff's acts were insubordinate, and plaintiff's altercation with a citizen constituted conduct detrimental to the department.

   Toombs v. City of Champaign, __ Ill. App. 3d __; 615 N.E.2d 50 (Fourth District, June 3, 1993). The former director of operations for the Champaign Department of Public Works sued the city for wrongful discharge. Plaintiff alleged that an employee manual granted him a right to be discharged only for certain specified reasons. Section 2-362 of the city code created the plaintiff's position and stated that "the Director of Operations shall be appointed by and serve at the pleasure of the city manager." Plaintiff claimed he was unaware that this amendment to the code was passed. The trial court found that the manual did not create a contract and granted the defendant's 2-615 motion to dismiss. Defendant's 2-619 motion to dismiss was granted because the amendment to Section 2-362 negated any contractual right that might have existed under the manual. This court found that the employee manual did not confer rights but warned employees of conduct or circumstances which would result in termination and affirmed the judgment of the trial court.

bb. Quo Warranto

   City of Highwood v. Joseph Obenberger, 238 Ill. App. 3d 1066; 605 N.E.2d 1079 (Second District, December 18, 1992). Plaintiff alleges that the defendant alderman orally tendered his resignation from his position as chairman of the license committee. Plaintiff further alleged that during the course of the meeting defendant tendered a typed and signed letter of resignation. The mayor accepted defendant's letter the following day (March 4, 1992). On March 6, 1992, defendant met with the mayor and various city offiials to express his desire to withdraw his resignation. Defendant contends the letter of resignation was delivered to the mayor contrary to his directions and without his permission, consent, or knowledge. On March 9, plaintiff filed a "Complaint in Chancery" seeking to declare a vacancy in the office of alderman and enjoining the defendant from holding himself out as an alderman. The circuit court entered a temporary restraining order against the defendant. On March 10, the parties entered into an agreed order declaring the resignation valid and the position vacant. On April 1, defendant moved to dissolve the temporary restraining order, vacate the agreed order, and dismiss the complaint for lack of subject matter jurisdiction. Defendant claimed plaintiff's sole remedy was quo warranto. A quo warranto proceeding is a challenge to a defendant's right to exercise jurisdiction over territory or to hold public office. The court ruled quo warranto is an inappropriate method for determining whether an aldermanic vacancy exists. The complaint did not seek to test the eligibility or qualifications of defendant to hold office.

cc. Recapture Fees

   Beneficial Development Corporation v. The City of Highland Park and Shaf Homebuilders, Inc., 239 Ill. App. 3d 414; 606 N.E.2d 837 (Second District, December 31, 1992). Hoist owned a five-acre parcel of property in Highland Park. She sold two acres to Tennyson Development Corporation. Tennyson sold those two acres to Beneficial. The land owned by Holst bordered the Tara Subdivision, owned by Shaf. The Highland Park City Council entered into a subdivision agreement with Shaf. The agreement provided for the execution of a recapture agreement which required the City to reimburse Shaf when the owners of the Hoist property apply for subdivision plat approval or wish to utilize, extend, or tap into Shaf's improvements. The Hoist owners would be required to reimburse the City for $116,296. A copy of the agreement was filed with the recorder of deeds in Lake County to notify persons interested. Plaintiff contends that the City assessed the recapture fees without authority, that the City deprived plaintiff of its property, and the city committed trespass of plaintiff's property by constructing an easement.

On appeal, plaintiff contends that the trial court erred in finding the recapture agreement valid, the trial court erred in refusing to reduce the recapture fees, the trial court erred when it found that defendants did not violate plaintiff's civil rights, the trial court erred when it awarded plaintiff $5,445 for trespass to their property, the trial court erred in failing to find the City jointly liable for trespass, and the trial court erred in refusing to grant a mistrial when it was discovered that one of the defendants' witnesses was a member of the same law firm as the City's trial attorney.

dd. Settlement

   Kugelman v. Village of Hoffman Estates, 236 Ill. App. 3d 407; 603 N.E.2d 45 (First District, October 2, 1992). In 1986, David S. Melind struck and killed a state trooper (Kugelman) during a high-speed chase. Plaintiff's wife alleged that the Village and several of its officers were negligent in initiating and failing to terminate the highspeed chase. Defendant's attorney offered $400,000 to settle contingent upon approval of the Village and their insurer. Plaintiff assumed the contingency had been met when the Village approved the offer. Plaintiff then entered into settlement agreements with the other defendants. The Village subsequently refused to honor the agreement, and plaintiff sought enforcement. The trial court enforced the settlement agreement. This court remanded finding that evidence of a settlement agreement must be clearly established before summary judgment can be granted.

ee. Tort Immunity

   Katherine Anderson v. Village of Forest Park, 238 Ill. App. 3d 83; 606 N.E.2d 205 (First District, October 28, 1992). This was a civil rights action which arose from a 911 call where the caller stated that plaintiff's aunt wanted plaintiff removed from her residence. Plaintiff was interrogated, searched, bodily removed from her bed and arrested. One officer paged through plaintiff's address book and telephoned people listed to ask them questions about plaintiff among other things. Plaintiff claimed she was assaulted, her civil rights were deprived, and that defendant breached a duty of care owed to plaintiff. The officers had determined that plaintiff was suffering from extreme paranoia and could not properly take care for herself. Defendants argued that plaintiff could not claim that the argument that the Tort Immunity Act did not apply to Section 1983 claims because this argument was waived. This court said this argument was not waived because it was raised in a motion to dismiss. This court further held that even if the Tort Immunity Act technically covered Section 1983 claims, a state immunity defense cannot control a federal statute. The Tort Immunity Act did not apply in light of the supremacy clause of the U.S. Constitution. With respect to the state law claims, however, the Act did apply. The dismissal of Counts I, II,

November 1993 / Illinois Municipal Review / Page 23

IV, and VI was reversed as sufficiently alleging willful and wanton misconduct.

   Jane Doe v. Calumet City, et al., 240 Ill. App. 3d 911; 609 N.E.2d 689 (First District, November 23, 1992). At approximately 4:30 a.m. an intruder entered plaintiff's apartment where plaintiff and her two children were sleeping. The intruder began to molest plaintiff and threatened to rape her. During a struggle with the intruder, plaintiff became locked out of the apartment in only her underwear. The intruder was left inside. 911 was called and several police officers were dispatched to the scene. Defendant Horka, a Calumet City officer, described plaintiff as hysterical and freaked out. Defendant Horka, although within his ability, made no effort to break into the apartment. Defendant Horka was well aware that the intruder was present in the apartment. An investigator arrived and entered the apartment from an unlocked back door. The investigator found the intruder raping one of the children. The Court found that the City was immune from liability as the plaintiff's complaint failed to allege facts to show that the children were under the immediate control of the police at the time of their injuries.

   Mary Gabriel v. City of Edwardsville, 237 Ill. App. 3d 649; 604 N.E.2d 565 (Fifth District, December 4, 1992). Plaintiff sued the city to recover for injuries she sustained when she walked into the street and tripped over a water main cover. Plaintiff was not walking within a crosswalk and was on her way to her son's house. The circuit court denied defendant's motion to dismiss. Defendant claimed no liability as it owed no duty to a pedestrian walking outside the crosswalk. At trial, defendant moved for a directed verdict; the circuit court denied the motion. Plaintiff appealed. Plaintiff claimed she was an intended and permitted user of the street. This court disagreed holding that a municipality owes no duty of care to pedestrians who cross a street outside of the crosswalk.

   Hanover Insurance Company v. Board of Education of the City of Chicago, 240 Ill. App. 3d 173: 608 N.E.2d 183 (First District, December 14, 1992). This case involves the issue of whether Section 3-106 of the Tort Immunity Act bars an action for negligence based on the condition of a school playground where the injured party entered the property at the request of the property owner to make masonry repairs and did not enter the playground for recreational purposes. The issue was whether the phrase "intended or permitted to be used for recreational purposes" refers to the character of the property or to the use of the property by the injured party. This court held that the immunity afforded by Section, 3-106 arises from the character or common use of the property, not from the actual or intended use of that property by the injured party.

Hull v. City of Chicago, 236 Ill. App. 3d 405; 602 N.E. 2d 1300 (First District, October 2, 1992). Plaintiff's decedent was struck by another car after the other car struck the median guardrail on Lake Shore Drive. The trial court found that the City owed no duty to the plaintiff to make the guardrail "crashworthy". This court affirmed, finding the City had no duty to take steps to prevent the accident which occurred in this case. The City had no duty to construct its median barriers in a way that insures no crossover accidents will occur.

   Jones v. The Village of Willow Springs, 240 Ill. App. 3d 2.35: 608 N.E.2d 298 (First District, December 23, 1992). Plaintiff sought damages resulting from a fire. Plaintiff contends defendant water commission was guilty of willful and wanton misconduct by failing to maintain adequate water pressure for firefighting. Plaintiff contends the Village was guilty of willful and wanton misconduct for its failure to remedy the water pressure situation. The trial court dismissed the case based on the Local Governmental and Governmental Employees Tort Immunity Act. On appeal, plaintiff claims that the water commission does not enjoy the protections of the Tort Immunity Act and that the Village is not immune because it owed plaintiff a special duty and acted in a willful and wanton manner. This court found that when a water commission undertakes to provide water for a purpose related to the general public, such as firefighting, it is acting in its governmental capacity and enjoys the protections of the Tort Immunity Act. This court also found no indication that the Village assumed a special duty to the plaintiff and no factual basis to support the plaintiff's claim of willful and wanton misconduct against the Village. Judgment of the trial court affirmed.

   Michael McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1; 607 N.E.2d 1271 (First District, December 4, 1992). Plaintiff was rendered a permanent quadriplegic from injuries he sustained when he fell into a stormwater drainage ditch while riding his bicycle. Plaintiff brought suit against the Village of Palatine, the Metropolitan Sanitary District (MSD), and the Salt Creek Rural Park District. A jury awarded $16 million, finding the Village 67 percent liable and the MSD 33 percent liable. The jury returned a favorable verdict for the Park District. The MSD and the plaintiff had entered into a settlement agreement pre-trial and thus, the trial court entered judgment in favor of the MSD. The Village appealed claiming that it did not hold a property interest in the ditch, that the verdict was against the manifest weight of the evidence, and that the lower court improperly excluded evidence that the plaintiff's bicycle had no brakes. The Village also argued that the trial court deprived it of due process and that the trial court erred in finding the settlement agreement between plaintiff and MSD in good faith. The lot on which plaintiff was injured was commonly referred to as lot 5. The Village acquired title to lot 5 in 1972. The Village subsequently conveyed the property to MSD. The issue was whether the Village had an easement interest in lot 5. The trial court had found that the Village retained an express utility easement in the ditch. The quit claim deed contained express language reserving "public and utility easements." The Village contended that the easement interest was insufficient to impose a tort duty on the Village to repair and maintain the ditch. The evidence established that the Village had use and control of the ditch, and this court concluded the Village had the duty to repair and maintain the ditch. Moreover, this court found that it was reasonably foreseeable that a person riding the bicycle would not see the ditch. McDermott's contributory negligence could not be considered because the Village was found liable based upon a theory of willful and wanton misconduct. The Village was not deprived of procedural due process. The trial court's findings were affirmed.

   Michael P. McKinnon v. City of Chicago, __ Ill. App. 3d __; 612 N.E.2d 67 (First District. March 9, 1993). Plaintiff's decedent was killed in a cross-over accident on the Kennedy Expressway. Plaintiff alleged, in his first amended complaint, that defendant designed, maintained, and controlled the Kennedy Expressway and failed to exercise due care by: (I) installing a barrier/guard rail which was too low and not strong enough; (2) failing to maintain the roadway; and, (3) designing, constructing, and maintaining the barrier/guard rails in an unsafe condition. Defendant filed a motion to dismiss arguing that in 1959 it had designed the pertinent area of the Kennedy Expressway to be an emergency turnout with no guard rails and that the City could not have subsequently altered that design because the State assumed sole responsibility for the repair, operation, and maintenance of the Kennedy Expressway upon its opening to public use. Defendant's motion was granted. Plaintiff filed a second amended complaint alleging that at the time defendant designed the Kennedy, it foresaw the likelihood of cross-over accidents and that the guard rail system was unreasonably dangerous and defective and that defendant willfully and wantonly constructed the emergency turnout without making any effort or provision to prevent cross-overs. Plaintiff's motion to the the amended complaint was denied. Plaintiff appealed contending that the first amended complaint was improperly dismissed. This court found that defendant has no common law or statutory duty to install median barriers or to extend the existing barrier and, therefore, the first amended complaint was properly dismissed. However, this court found that the circuit court abused its discretion by denying plaintiff's request for leave to amend. In his second amended complaint, plaintiff alleged the guard rail system, not the guard rails themselves, was defective.

   Felipe Oropeza v. Board of Education of the City of Chicago, 238 Ill. App. 3d 399; 606 N.E.2d 482 (First District, November 18, 1992). Plaintiff allegedly tripped and fell while playing basketball on an outdoor court which was owned by the defendant. Plaintiff alleged that the court was in a dangerous condition as it contained trenches that were one inch deep and four inches wide. Defendant's motion to dismiss was granted by the trial court. Plaintiff then appealed contending that the trial court erred by: 1) failing to apply the doctrine of attraction in determining whether the complaint stated a duty owed by a landowner to a minor invitee; 2) finding that the allegations failed to establish a cause of action for willful and wanton conduct; and, 3) relying on Lester v. Chicago Park District. This court affirmed the finding that even if the attraction principle imposed a duty on the landowner, the Tort Immunity Act shielded the defendant from liability.

   Michael Poindexter v. City of Chicago, First District Appellate Court, Docket No. 1-92-1279, (May 14, 1993). Plaintiff sought dam-

Page 24 / Illinois Municipal Review / November 1993

ages for personal injuries he received when he fell into an open utility hole in the street. Plaintiff contended that he had to walk across the road because the sidewalks were in disrepair. The circuit court granted summary judgment for the defendant on the ground that the city owed no duty to the plaintiff. Plaintiff appealed contending that he was an intended and permitted user of the street and his use was reasonably foreseeable. This court found that the evidence submitted showed that plaintiff walked along the middle of the roadway, and he was not an intended and permitted user.

ff. Trespass

   City of Quincy v. Daniels, Fourth District Appellate Court, Docket No. 4-92-0980, (June 17, 1993). Terry Jones rented an apartment on a month-to-month basis. The rental agreement provided that the tenant should not house permanent guests on the premises or assign or sublet the premises. Jones' mother, Daniels, began to stay at the apartment. Defendant was notified by the landlords that she was trespassing and had 48 hours to vacate the premises. After the 48 hours had passed, the landlord notified the Ouincy Police Department. The police told the defendant that she was trespassing and she should vacate the apartment within 48 hours. When defendant did not vacate th premises, she was formally charged with trespass. Defendant was found guilty in circuit court. Section 31-138 of the Quincy Municipal Code provides that unlaw fill trespass is defined as a failure or refusal to depart from the premises of another when requested to leave by an owner or occupant. The city contends that because it has no property interest in the apartment building it should be able to prosecute trespassers under its ordinance, as opposed to the Forcible Entry Act. This court found that the forcible Entry Act did not preempt the city's home rule powers. The trespass ordinance was void, however, to the extent it created a criminal offense for conduct deemed non-criminal.

gg. Utilities

   Benno v. The Central Lake County Joint Action Water Agency, 242 Ill. App.,3d 306; 609 N.E.2d 1056 (Second District. March 5,1993). Plaintiff filed a petition for a temporary restraining order to prevent defendant from digging under or into his property. Plaintiff owned land which extended into the center line of Route 120, and defendant wanted to run a waterline under his property. The trial court granted the temporary restraining order. Defendant moved to dissolve the temporary restraining order. The court found that the temporary restraining order was granted without notice and that there was an adequate remedy at law for the plaintiff. Thus, the temporary restraining order was dissolved. Plaintiff then filed a complaint for trespass. Defendant moved to dismiss. The court granted the motion, finding that the defendant had the right to install its pipeline beneath the highway right-of-way and there had been no trespass. Defendant was awarded damages; plaintiff appealed. The issue on appeal was whether a utility is free to dig and install a water main in the plaintiff's land without securing the plaintiff's permission or exercising the power or eminent domain where the State of Illinois has the right to use that land for highway purposes. This court found that the installation of the water main was beyond the scope of the easement (which belonged to the Department of Transportation for highway purposes).

hh. Zoning

   City of Waterloo v. Dennis Markham, 234 Ill. App. 3d 744; 600 N.E.2d 1320 (Fifth District, October 5. 1992). The City brought suit against the defendant for violation of the City's Zoning ordinances dealing with the posting of free-standing and temporary signs. The trial court granted the defendant's motion to dismiss based on the First Amendment. The defendant had posted a temporary sign on his private premises. The City Zoning ordinance provides that temporary signs may only be allowed for 90 days. This court found that the ordinance was content neutral, specifically tailored to serve the governmental interest, and leaves other channels open for communication. Thus, the ordinance was valid and did not violate the First Amendment.

   The Kirk Corporation v. The Village of Buffalo Grove, First District Appellate Court. Docket No. 1-90-3642, (June 23, 1993). In 1974, Buffalo Crove adopted Ordinance No. 74-22A which provided for the rezoning of four parcels of land (A, B, C, D) as "special use". Subsequently, the property owner petitioned the Village to rezone parcels B, C, and D. The rezoning was granted. In 1988, the plaintiff submitted a plan to develop parcel A in accordance with Ordinance No. 74-22A. After recommendation of the Village Plan Commission to disapprove the plan, the Village Board did not accept it. Plaintiff then filed this action for declaratory relief. The trial court granted summary judgment for the plaintiff finding that Ordinance No. 74- 22A was valid since it had never been repealed. On appeal, the Village argued that the special use approved for parcel A had lapsed or been abandoned by the plaintiff. This court found that Ordinance No. 74-22A was valid. It had never been repealed and had not been amended to effect parcel A. The trial court's finding that plaintiff's plan had to be accepted as a matter of law was reversed by this Court, and the ease was remanded in part to be presented on the issue of whether the plaintiff's plan should be approved.

   Robert Smith v. Town of Normal, 238 Ill. App. 3d 944; 605 N.E.2d 727 (Fourth District, December 23, 1992). Plaintiff owns a seven bedroom house in Normal, Illinois, he rents this house to eight students. The house is located in an area zoned for single family residences. Prior to the enactment of the Normal Zoning Code, Smith's use of the house as a rooming house was permitted. Therefore, his use became a lawful nonconforming use. In 1991, a fire occurred at the house. Plaintiff was issued a building permit to repair the fire damage. Plaintiff's repairs included replacing or adding new studs, repairing the kitchen ceiling joist, and fixing the ventilation hole cut in the roof by the firemen. The Zoning Commissioner informed plaintiff that the structure could no longer be used as a rooming house because the repairs constituted reconstruction. The Zoning Board of Appeals affirmed the decision of the Commissioner. The circuit court, on administrative review, affirmed the Board; plaintiff appealed. This court found that because what the plaintiff will do will prolong the life of the supporting members of the building, it is a structural alteration, and plaintiff cannot perform this work without losing the right to operate the structure in a nonconforming manner. The plaintiff had also claimed that the Code was unconstitutional as applied to his property because it bears no direct and substantial relationship to the protection of the public health, safety, and welfare. This court held that elimination of nonconforming uses over a period of time bears a rational relationship to the public interest in protecting landowners in general neighborhoods from incompatible and detrimental land use.

II. FEDERAL DECISIONS

A. UNITED STATES SUPREME COURT

a. Civil Rights

   Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, Fla., 113 S.Ct. 2297; 124 L.Ed.2d 586 (June 14, 1993). A contractor's association had standing under the equal protection clause to bring an action challenging a city ordinance which required that 10 percent spent each year on contracts be set aside for minority businesses. The association not only had to demonstrate that its members were able and ready to bid on contracts but also that a discriminatory policy prevented them from doing so on an equal basis.

b. Fair Labor Standards Act

   Moreau v. Klevenhagen, 113 S.Ct. 1905:123 L.Ed.2d 584 (May 3, 1993). Mere selection of a representative who lacked lawful authority to bargain was insufficient to bring employees within the scope of Fair Labor Standards Act subsection 9(o)(2)(A)(i) which requires that a comp time agreement be between an employer and the employee's designated representative.

c. First Amendment

   Church of Lukumi Babalu Aye. Inc. v. City of Hialeah, 113 S.Ct. 227; 124 L.Ed.2d 472 (June 11, 1993). City animal cruelty ordinances which regulated the ritual sacrifice of animals violated the free exercise clause. The text of the ordinances and the operation demonstrated that they were not neutral, but had as their object the suppression of the Santeria religion's central element, animal sacrifice.

   City of Cincinnati v. Discovery Network, Inc., 113 S.Ct. 1505; 123 L.Ed.2d 441 (March 24, 1993). The City of Cincinnati violated the First Amendment with a selective and categorical ban on the distribution, by newsrack, of "commercial handbills". The City's regulation of newsracks was predicated upon the difference in content between commercial speech and newspapers. Thus, these regulations were

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not content neutral and did not qualify as a valid time, manner or place restriction on protected speech.

B. UNITED STATES COURTS OF APPEALS

a. Civil Rights

   Gash Association v. Village of Rosemont, (C.A. 7), No. 92-3481, (June 8, 1993). The district court lacked jurisdiction over a mortgagee's § 1983 action against a Village who was the winning bidder at a foreclosure sale, because the action was an attack on a state court judgment which confirmed the sale.

b. Drug Testing

   Jackson v. Gates, (C.A. 9), 975 F.2d 648, (September 17,1992). A police officer's Fourth Amendment rights were violated when he was discharged for refusing to comply with an order to provide a urine sample for drug testing. The city needed to show a reasonable basis for suspecting the officer of drug use.

c. Eminent Domain

   Sierra Lake Reserve v. City of Rocklin, (C.A. 9), 987 F.2d 662, (March 16,1993). A rent control ordinance for mobile homes was not a compensable physical occupation of a mobile home park owner's property under the Fifth Amendment.

d. Fair Housing

   Marbrunak, Inc. v. City of Stow, Ohio, (C.A. 6), 974 F.2d 43, (August 31, 1992). A city's zoning ordinance that imposed special safety requirements on a proposed residence for four mentally retarded individuals violated the Fair Housing Amendment Act. The safety requirements were more stringent than those applied to other single-family residences. The requirements were not tailored to the particular disabilities of the residents.

e. Fair Labor Standards Act

   Alldread v. City of Granada, (C.A. 5), 988 F.2d 1425, (April 27, 1993). Claim by firefighters for sleep time compensation which was filed more than three years after they stopped receiving sleep time compensation was time-barred.

   Gilligan v. City of Emporia, (C.A. 10), 986 F.2d 410, (February 19, 1993). City sewer and water employees were not entitled to overtime compensation under the Fair Labor Standards Act for time spent "on-call". The restrictions placed upon the employees were not so restrictive that this "on-call" time was spent predominantly to benefit their employer.

   Kinney v. District of Columbia, (C.A. D.C.), 994 F.2d 6, (June 1, 1993). Firefighters whose pay was subject to decrease if they were absent for less than one day and did not have sufficient accrued sick leave, or comp time were not salaried employees and thus were not exempt from the Fair Labor Standards Act.

f. First Amendment

   Graft v. City of Chicago, (C.A. 7), 986 F.2d 1055, (February 16, 1993). Chicago's permit requirement for newsstands violated the First Amendment by giving too much discretion to an unelected decisionmaker. The ordinance failed to provide adequate procedural safeguards for licensing a business associated with First Amendment freedoms.

   Multimedia Publishing Co. of South Carolina v. Greenville- Spartanburg Airport District, (C.A. 4), 991 F.2d 154, (April 22,1993). A total ban on the placement of newspaper vending machines inside an airport terminal violated the First Amendment.

g. Municipalities

   Milwaukee Gun Club v. Schulz, (C.A. 7), 979 F.2d 1252, (November 17, 1992). Transfer of property owned by a recreational group to the county was within the powers of the city.

h. Public Employment

   Simons v. City of Grand Forks, (C.A. 8), 985 F.2d 981, (February 16,1993). A city assessor was not deprived of due process by the city's pre-termination procedure. He was given written notice of all allegations and access to the evidence.

i. Public Employment/Political Affiliation

   Dimmig v. Wahl, (C.A. 7), 983 F.2d 86, (January 6, 1993). An action taken by a sheriff to discharge a probationary employee did not violate the First Amendment. The probationary deputy refused to campaign for the sheriff's reelection.

   Heck v. City of Freeport, (C.A. 7), 985 F.2d 305, (January 29, 1993). A general inspector with the city health department whose term of office was limited to that of the mayor and who was appointed by the mayor was a policymaker and, therefore, party affiliation was a permissible criteria for discharge.

j. Sexual Harassment

   Woodward v. City of Worland, (C.A. 10), 977 F.2d 1392, (October 19, 1992). Defendant police officers and supervisors were entitled to qualified immunity regarding an equal protection claim asserted by a female officer because it was not clearly established that sexual harassment under color of state law violates the Equal Protection Clause.

C. UNITED STATES DISTRICT COURTS

a. Civil Rights

   Galloway v. Superior Court of District of Columbia, (D. D.C.), 816 F. Supp. 12, (March 16,1993). A policy excluding blind individuals from serving as jurors violated both the Americans with Disabilities Act and the Rehabilitation Act.

   Hallstrom v. City of Garden City, (D. Idaho), 991 F.2d 1473, (May 3, 1991). Defendant alleged that requiring her to carry a driver's license violated her right to travel. A driver does not have a constitutional right not to carry a driver's license. Plaintiff's arrest after failing to produce her license was not improper.

   Marshall v. Gates, (C. D. Cal.), 812 F. Supp. 1050, (January 15, 1993). L.A.P.D. officials were entitled to qualified immunity from a former employee's civil rights action. Officers could reasonably have believed that the Department's conduct was lawful.

b. Fair Labor Standards Act

   Aaron v. City of Wichita, (D. Kan.), 822 F. Supp. 683, (May 3, 1993). Firefighters were entitled to prejudgment interest on a damage award in their Fair Labor Standards Act action against a city, in which liquidated damages were not awarded. The fact that the city had a local monopoly on employing firefighters did not outweigh the fact that the back pay the firefighters would receive was not worth as much as when it was earned.

   Ahern v. State of New York, (N.D.N.Y.), 807 F. Supp. 919, (December 8, 1992). The Fair Labor Standards Act applies to New York State Police, and state police investigators could not claim the administrative exemption. The investigators did not administer the business affairs of the agency.

c. First Amendment

   Chernov v. City of Hollywood, (S.D. Fla.), 819 F. Supp. 1070, (March 31,1993). An employee's attempt to voice an objection to the proposed city budget before the city commission involved the employee's speech rights. However, because the employee's attempts to communicate with the commission were focused on his personal job performance and salary, they did not involve a matter of public concern and were not protected by the First Amendment.

   Harvey v. Cobb County, Ga., (N.D. Ga.), 811 F. Supp. 669, (January 13, 1993). Displaying the Ten Commandments in a framed

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panel in a county courthouse violated the First Amendment. Including the panel in an educational display of historical items would be constitutional.

Pritchard v. Mackie, (S.D. Fla.), 811 F. Supp. 665, (January 16, 1993). A requirement that groups secure a $1 million liability policy prior to being permitted to use the town hall violated the Ku Klux Klan's First Amendment rights. This requirement imposed an undue burden on poorly financed groups.

d. Jurisdiction

   Rose v. Granite City Police Department, (E.D. Pa.), 813 F. Supp. 319, (January 4, 1993). The court lacked jurisdiction over an Illinois city and its police department. Plaintiff, a Pennsylvania resident, sought damages for the vandalization of his mobile home while the home was in the custody of the police department following the plaintiff's arrest.

e. Liquor Control

   Herro v. City of Milwaukee, (E.D. Wis.), 817 F. Supp. 768, (April 5,1993). Summary judgment was precluded on a liquor license applicant's claim that he was denied equal protection when the city rejected his application nine months before granting a license for the same premises to another person. The applicant alleged that the reasons for the denial of his license should have similarly affected the successful applicant.

f. Liquor Licenses

   Gates v, Chadwick, (M.D. Ga.), 812 F. Supp. 1233, (February 10, 1993). A city liquor control ordinance preventing the granting of a liquor license to a person whose business is located within 100 yards of a church did not apply where the church was abandoned.

g. Public Employment

   Smith v. Martin, (N.D. Ill.), 819 F. Supp. 733, (October 21, 1992). The inhalation of second-hand smoke is a matter of public concern. Thus disputed facts concerning whether an employee of the Chicago Police Department was punished for speaking out against second-hand smoke precluded summary judgment.

h. Reapportionment

   Barnett v. Daley, (N.D. Ill.), 809 F. Supp. 1323, (December 21, 1992). Chicago's ward redistricting map did not discriminate against African-Americans. Under the map, African-Americans had a 70 percent supermajority in 38 percent of the wards. Thus, they were guaranteed electoral representation in proportion to their percentage of the total city wide population.

   Bonilla v. City Council of City of Chicago, (N.D. Ill.), 809 F. Supp. 590, (December 21, 1992). Adoption of a requirement that at least 10 aldermen support a proposed redistricting ordinance before it is submitted for voter approval was not a standard, practice, or procedure covered by the Voting Rights Act. The change did not affect the voting power of constituents, only the aldermen.

i. Residency

   MacDonald v. City of Henderson, (D. Nev.), 818 F. Supp. 303, (April 1, 1993). A one-year residency requirement for candidates running for the office of city commissioner did not violate equal protection. Increasing the exposure of candidates to voters and voters' problems to candidates was a legitimate governmental concern which supported the city's one-year residency requirement.

j. Sign Ordinance

   Harp Advertising of Illinois, Inc. v. Village of Chicago Ridge, (N.D. Ill.), 809 F. Supp. 1315, (October 23,1992). A village ordinance which was amended to eliminate an exemption for eight categories of signs and to eliminate the board's decision to grant permission to erect non-conforming signs no longer violated the First Amendment.

k. Zoning

   ILQ Investments, Inc. v. City of Rochester, (D. Minn.), 816 F. Supp. 516, (February 22, 1993). Ordinance which deemed that a video store that devoted 40 percent of its floor space to sexually explicit books and tapes was an "adult establishment" did not serve a substantial governmental interest and was thus an impermissible time, place, and manner restriction. The ordinance restricted businesses that sold or rented any amount of sexually explicit material.

   Libra Books v. City of Milwaukee, (E.D. Wis.), 818 F. Supp. 263, (April 6, 1993). An adult theater's First Amendment rights were not violated by an ordinance which provided that establishments offering private viewing booths for movies must have at least one side of each booth totally open to the public with an unobstructed view of anyone occupying the booth.

   O'Malley v. City of Syracuse, (N.D. N.Y.), 813 F. Supp. 133, (February 11, 1993). Zoning ordinances effecting a city-wide ban on total nudity and banning nude dancing and topless dancing establishments in limited areas was likely to be constitutional under the First and Fourteenth Amendments, thus plaintiff was not entitled to a preliminary injunction against the enforcement of the ordinance.

   Pengilly v. Multnomah County, (D. Oregon), 810 F. Supp. 1111, (December 17,1992). Requirement that landowners dedicate several feet of additional right of way along a road as a condition of a building permit was not an unconstitutional taking.

   Triplett Grille, Inc. v. City of Akron, 816 F. Supp. 1249, (March 17, 1993). An ordinance prohibiting all nude performances (not just erotic adult entertainment) was overbroad and thus violated the First Amendment.

III. OPINIONS OF THE ILLINOIS ATTORNEY GENERAL

Elections

Opinion No. 92-020, (October 6, 1992)

   The provisions of the Election Code which require municipal and township clerks to conduct in-person absentee voting at their offices are mandatory.

Governmental Ethics and Conflict of Interest

Opinion No. 93-014, (June 21, 1993)

   If, at the time a commissioner of a home assurance equity commission voted upon the award of a contract to his wife's advertising firm, it was anticipated that the contract recipient would buy advertising space in the newspaper that employed the commissioner, the commissioner's action violated Section 3 of the Public Officer Prohibited Activities Act.

Governmental Ethics and Conflict of Interest

Opinion No. 93-010, (May 25, 1993)

   A common law conflict of interest exists where a chairman of a county board insurance committee has a business relationship with the insurance agency awarded the county's health insurance contract. Thus, the chairman must disqualify himself from voting or otherwise acting upon matters in which the agency is interested.

Municipalities

Opinion No. 92-025, (October 27, 1992)

   Whenever it is impractical for a regular member of the police force to act, an auxiliary officer may be temporarily assigned to perform any law enforcement activity regularly performed by a city police officer.

Rebate of Sales Tax to Developers

Opinion No. 93-003, (January 19, 1993)

   Attorney General Roland Burris issued an informal opinion to the State's Attorney of Winnebago County, Paul Logli, on January 19, 1993. The City of Loves Park apparently had entered into an agreement with a private developer. The developer, pursuant to the agreement, agreed to construct an automobile dealership. The City agreed to return a portion of the sales tax generated by the business over the next 20 years. The Attorney General opined that this sort of agreement (a "gift" of city revenue) was not authorized by the statutes and was, therefore, invalid.

State Matters

Opinion No. 92-024, (October 27, 1992)

   The receipt of economic development loans from the Department of Commerce and Community Affairs does not make an entity subject to the provisions of the Drug Free Workplace Act.

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