The Illinois Municipal League, through its legal department, provides assistance to member municipalities in many ways. One manner of providing this assistance is through amicus curiae or "friend of the court" briefs. These briefs support the municipality's standpoint in a legal action and often assist the court in recognizing the impact that a decision may have upon Illinois municipalities.

The procedure for obtaining amicus assistance is as follows: a written request must be sent to the League outlining the issues to be raised and their municipal impact. The Illinois Municipal League Board of Directors will then consider the request and direct the League as to what action should be taken. Nineteen ninety-six has been a very active year for the League's legal department with a total of nine amicus interventions being authorized by the League's Board of Directors. The following is an overview of the cases being monitored by the League wherein the League has taken or will take some form of action.

Police Pensions

The Illinois Supreme Court handed down a favorable decision for Illinois municipalities on Friday, October 18, 1996, McNamee, et al. v. The State of Illinois, No. 79592. The plaintiffs in this matter were all current or retired police officers employed or previously employed by various municipalities across the State. They brought an action in the Circuit Court of Cook County claiming that section 3-127 of the Illinois Pension Code, as amended by P.A. 87-1265, was unconstitutional.

Public Act 87-1265 had two effects on the police pension funding statute: 1) it lengthened the time (by 13 1/2 years) within which a pension fund had to become fully funded and; 2) it changed the method of computing contributions by a significant amount. The effect of this amendment was to lower the amount of annual municipal contributions. The plaintiffs argued that this was unconstitutional because the Illinois Constitution says that membership in a public pension fund is an enforceable contractual right and the benefits thereof may not be diminished or impaired.

The Circuit Court found for the plaintiffs and since the statute was declared unconstitutional, the case proceeded directly to the Illinois Supreme Court. At this point, the Illinois Municipal League Board of Directors directed the League to file a brief amicus curiae. In its brief, the League urged the Illinois Supreme Court to reverse the lower court specifically pointing out the devastating financial impact this case could have on all pension systems (since many other pension funding mechanisms had been similarly amended) as well as to the debates of the drafters of the Illinois Constitution, which clearly indicated that the Constitution protected benefits only and not how those benefits were funded.

The Illinois Supreme Court, in an opinion authored by Justice Nickels, agreed with the State of Illinois and the Illinois Municipal League. The Court found that the debates of the framers of the 1970 Constitution showed without a doubt that the intent behind Article XIII, Section 5 was to protect benefits only and not the method of funding those benefits.

Open and Obvious Danger Doctrine

In Bucheleres v. Chicago Park District, Illinois Supreme Court Nos. 78760, 78790 (Consolidated), the Illinois Supreme Court addressed the issue of whether the Park District had a duty to warn or protect the public from the risks associated with diving from Lake Michigan's seawalls. The Park District argued, as did the amici, that it was immune from liability because the danger associated with diving into the Lake was so "open and obvious" that it carried its own warning of potential harm.

The Illinois Supreme Court agreed with the Park District and reconfirmed the existence of the open and obvious danger doctrine in Illinois.

Collective Bargaining

The Illinois Supreme Court, in Village of Winfield v. ISLRB, No. 80322, will address Section 20(b) of the Illinois Public Labor Relations Act. This Section exempts public employers employing less than 35 employees from collective bargaining. The lower court found that the Village of Winfield and the Winfield Public Library in addition to other employees, "jointly employed" ten library employees and that six summer public works staffers were employees making Winfield subject to collective bargaining.

The Illinois Municipal League, along with the City of Peoria Heights, filed a brief arguing that the Village and the library were separate units of local government and not "joint employers" of the library employees. The intent of the General Assembly in enacting Section 20(b) was to exempt small units of government from collective bargaining and this decision could draw many more small municipalities into the collective bargaining process.

This case is pending with the Illinois Supreme Court.

Intended and Permitted Users/Tort Immunity

In Redlin v. Village of Hanover Park, the Illinois Municipal League filed an amicus statement in support of the petition for leave to appeal filed by Hanover Park, which unfortunately was denied by the Illinois Supreme Court.

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Pursuant to the Tort Immunity Act, a municipality is only liable to intended and permitted users of public property. The plaintiff in this case was an unlicensed motorist who was under the influence of alcohol at the time of his accident. The lower court found that despite these facts, the plaintiff was still an "intended and permitted user" of the roadway and the Village was not entitled to immunity. The words "intended and permitted user" found in Section 3-102(a) of the Tort Immunity Act, according to the lower court, refer to the use of the roadway and not to those using the roadway. Thus, because the road in this case was intended to be used for vehicular traffic, the Village was not immune from liability.

Unfortunately, this case will remain on the books because the Illinois Supreme Court refused to hear it. Hopefully, this problem will be addressed by the General Assembly in future sessions.

TIF/Enterprise Zones

The case In Re Application of the McDonough County Treasurer involves the following facts: the City of Macomb established an enterprise zone and a TIF which included some overlapping areas. Owners of commercial real estate within both areas objected to TIF taxation of improvements which were also subject to enterprise zone tax abatement for new construction or substantial renovation of private property within the zone. The circuit court sustained objections to the TIF taxation. The issue on appeal was whether a TIF district is entitled to tax improvements when those improvements are made to property also located in an enterprise zone and subject to abatement.

In a very cursory, four-page opinion, the Appellate Court found against the City. The Appellate Court relied on the fact that the enterprise zone tax abatements were enacted and the zone was certified before the TIF ordinances were passed and because an amendment to an enterprise zone must be approved by the Department of Commerce and Community Affairs (the TIF was not) that the TIF district could not tax these improvements. Moreover, the Court stated that even if this were considered an amendment to the enterprise zone, that business enterprises within the zone on the date of the amendment retained all previously extended benefits (abatements) for the original term of the enterprise zone.

The ramifications of this decision are financially devastating for the City of Macomb ($100,000 plus in TIF collections for this year and $100,000 plus in refunds for prior years). Several other municipalities are similarly situated to Macomb and could also withstand a negative financial impact from this decision. The City has filed a Petiton for Leave to Appeal before the Illinois Supreme Court and the Illinois Municipal League has filed a statement supporting that Petition.

Housing Inspection Ordinances

Black, et al. v. Village of Park Forest involves a Fourth Amendment challenge to Park Forest's housing ordinance which requires annual inspection of single family rental properties. The plaintiffs are arguing that the ordinance violates the Fourth Amendment's prohibition against unreasonable search and seizure. The most important argument being made by the plaintiffs is that traditional probable cause standards apply for obtaining an administrative search warant for housing inspections.

If this court agrees, this would be devastating for cities because cities would have to rely on tenants to report code violations or wait until criminal violations have become so severe that they can be seen from the outside of the property. The League filed a memorandum of law supporting summary judgment for the village. This is pending in the United States District Court for the Northern District.

Third-Party Liability

McNamee v. Fedesco v. City of Chicago involves a City of Chicago firefighter who was killed while in training. He jumped into the "life cube." His relatives then sued the manufacturer of the cube, who in turn joined the City as a third-party defendant. The City argued that the Illinois Supreme Court case, Kotecki v. Cyclops Welding, which limits the third-party liability of an employer to the amount of its statutory worker's compensation liability, should be extended to Pension Code benefits under 40 ILCS 5/22-301 et seq.

The Circuit Court of Cook County certified the question for interlocutory review by the First District Appellate Court. The application was accepted. If the First District Appellate Court provides an affirmative answer to the certified question, municipal third-party liability will be capped at amount of pension code benefits. The League has filed an amicus brief supporting the City's position.

Fair Labor Standards Act

Wendell Banks v. City of Springfield, Case No. 96-3016, (United States District Court, Central District). The City of Springfield is being sued by several sworn police officers in federal court for allegedly violating the Fair Labor Standards Act. All of the plaintiffs attended the police academy to receive training while employed by the City. The police academy consists of a ten-week training course. Class members reported to the dormitory on 7:00 p.m. Sunday and resided there until 4:00 p.m. on Friday, taking classes during the day.

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Plaintiffs allege that they should be paid overtime for hours in excess of 171 in a 28-day period as required by the Fair Labor Standards Act, but instead were given compensatory time calculated at the hourly rate. Plaintiffs are arguing that they are entitled to overtime compensation merely because they are required to be at the dormitory and are "subject to discipline" while they are present at the dormitory. This is contrary to the intent behind the Fair Labor Standards Act and could be financially devastating for cities whose police recruits are required to attend similar training. The League is supporting the City's motion for summary judgment at the District Court level.

Immunity for Recreational Property

Sylvester v. Chicago Park District, Illinois Supreme Court No. 81138. The League will co-sponsor a brief in this case which is pending before the Illinois Supreme Court. This case involves a slip and fall in Burnham Park. The plaintiff tripped on a concrete car stop and fell on a sidewalk. The trial court found for the plaintiff, imputing constructive notice to the Park District under Section 3-102 of the Tort Immunity Act relying on the post occurrence condition of the property. The Park District had argued on appeal that the sidewalk was recreational property because it was located in the Park, without any additional proof of past recreational use. The Appellate Court, nevertheless, denied Section 3-106 immunity imposing a "past recreational use" test as a condition precedent to 3-106 immunity. This is contrary to the plain meaning of 3-106 and the decisions of other appellate districts as well as other divisions of the First District.

Resolving this question is important to any public entity which owns parks or other recreational properties. Section 3-106 immunity could be extended to all property located within a park without proof of past recreational use of that property. •

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