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Smith v. Waukegan Park District, 2008 WL 1746664 (Ill. April 17, 2008).
The plaintiff was a park district employee who sued the district for retaliatory discharge after he was fired, allegedly for filing a workers' compensation claim. The park district argued it was immune from liability because the superintendent who fired the employee was immune under the Supreme Court's decision in Buckner v. Atlantic Plant Maintenance 182 Ill.2d 12 (1998), which held only the employer, and not individual employees, can be liable in a retaliatory discharge case. The park district argued that because the employee could not be held liable for the discharge, the district was also immune under Section 2-109 of the Tort Immunity Act (which provides that a public entity is not liable when its employee is not liable). Reversing the Appellate Court, the Supreme Court rejected this argument because it is the employer, not the employee, which commits the alleged wrongdoing in a retaliatory discharge case. Therefore, Section 2-109 did not apply. The Supreme Court also rejected the park district's claim of discretionary immunity under Section 2-201 of the Act, stating that a local government possesses no immunized discretion to discharge employees for exercising workers' compensation rights.

An insurance company brought a lawsuit against the City of Granite City to recover for damages when a sewer backed up into a homeowner's basement. The trial court granted summary judgment based on the 10-year statute of repose for negligent design claims. The Appellate Court reversed, holding the 10-year statute of repose in 735 ICLS 5/13-214(b) only barred claims regarding the design, installation and construction of the sewer system, but the claims raised negligent operation and maintenance of the sewer system. Further, the City was not immune under Section 2-201 of the Tort Immunity Act because its acts and omissions in ensuring the work on the sewer system was done in a safe and skillful manner were ministerial, not discretionary, particularly in light of state standards for the operation of sewer systems. Finally, the City's argument that it could not be liable because the rainstorm was extraordinary failed because the extent of rainfall and how it impacted the City was a fact question for the jury.

A group of students sued Carlinville Community School District and its bus driver, claiming the bus driver sexually abused the students. The students alleged the School District was a common carrier and, thus, had a duty to retain direct and primary responsibility for operating the bus with the highest degree of care. If an employee of a common carrier intentionally injures a passenger, the common carrier is liable for the passenger's injuries, even if the employee's actions were not in the scope of his employment. As a result, a common carrier could be liable for the sexual assault of one of its passengers by its employee. The Appellate Court held that although the School District was not a common carrier, it was still held to the highest degree of care to the same extent as common carriers. The Appellate Court explained that a school district is performing the same function of a common carrier by transporting individuals and, as with passengers on regular buses, students on a school bus cannot ensure their own safety but must rely on a school district to do so.

The police arrested the plaintiff, David Moore, for the misdemeanor of driving on a suspended license. Under Virginia law, driving on a suspended license requires only a citation to be issued, not an arrest. When Moore was searched, the police discovered crack cocaine on his person, and he was convicted on drug charges. On appeal, Moore argued that because the police arrested him instead of issuing a citation and letting him go, the arrest was invalid under state law, the search that followed the arrest was invalid and the evidence obtained in the search should have been suppressed. The Virginia Supreme Court found the search violated the Fourth Amendment because the arresting officers should have only issued a citation under Virginia law, and the Fourth Amendment does not permit a search incident to a citation. The United States Supreme Court reversed, finding the police did not violate the Fourth Amendment because the arrest was based on probable cause even though prohibited by state law. The Supreme Court explained that state restrictions do not alter the Fourth Amendment's guarantees.

After his arrest, the plaintiff was convicted of resisting a peace officer. The plaintiff then filed a Section 1983 lawsuit against the police officers who arrested him, alleging excessive force and false arrest. The defendant officers argued the plaintiff's claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), which holds that a plaintiff may not bring a Section 1983 claim that invalidates his criminal conviction. The Seventh Circuit held the plaintiff's false arrest was barred because the officers conducted a valid Terry stop. However, the plaintiff's excessive force claim was not barred because the plaintiff alleged the officers used excessive force after they apprehended him, while he was waiting to be handcuffed and while handcuffed. As such, the plaintiff's excessive force claim was not intertwined with the state court conviction for resisting a peace officer and not barred by Heck.

A high school student was prohibited from wearing a t-shirt that read "Be Happy, Not Gay," in response to a "Day of Silence" in the school. During the "Day of Silence," intended to draw attention to the harassment of homosexuals, students remain silent throughout the day except when called upon in class. The student sued Indian Prairie School District, alleging the School District violated his right to free speech by forbidding him to wear the t-shirt and make negative comments about homosexuality. The Seventh Circuit held the District Court erred in denying the student's request for a preliminary injunction to enjoin the School District from prohibiting him from wearing the t-shirt. The student was likely to succeed on the merits of his claim because, although the School District's rule banning derogatory comments or fighting words did not violate the First Amendment, the t-shirt was only "tepidly negative." It was "highly speculative" that wearing the t-shirt would provide incidents of harassment or "poison the educational atmosphere."

The plaintiff brought a lawsuit against the City of Collinsville, alleging a violation of the Open Meetings Act and Freedom of Information Act ("FOIA"), because the City did not allow the plaintiff to listen to the original audio tape recording of the City Council's meeting but instead offered to make the plaintiff a copy for a fee. The City argued that it did not have the facilities for the public to listen to the tapes, and it needed to preserve its original public records. The Appellate Court held the plaintiff was entitled to listen to the original recording of the City Council meeting, rather than pay for a copy to be made. The Appellate Court further explained that a public body's lack of facilities for the public to listen to audiotapes is not a valid basis under FOIA upon which to deny a request to inspect a tape-recorded public record, and FOIA does not authorize the charging of inspection fees.

HB 4713 would amend the Cannabis Control Act, the Illinois Controlled Substances Act, and the Methamphetamine Control and Community Protection Act to provide that a person who calls 911 to report an overdose of cannabis, a controlled, counterfeit, or look-alike substance, controlled substance analog, methamphetamine, or a substance containing methamphetamine and the person who overdosed are immune from criminal liability for possession. The bill was amended to provide that immunity will not be extended if prior to the 911 call law enforcement had reasonable suspicion or probable cause to detain, arrest or search the caller or the person who overdosed. This bill remains in the House.

SB 2014: Zoning Amendments Subject to DeNovo Judicial Review as Legislative Decisions.

SB 2014, which has passed both the Senate and House, would amend the Illinois Municipal Code to provide that a municipal decision regarding a petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance is subject to de novo judicial review regardless of whether the process is considered administrative for other purposes. The standard applies to decisions of home rule and non-home rule communities.

PREVIOUSLY REPORTED POSSIBLE CHANGES IN THE LAW THAT MAY AFFECT YOU

HB 5578: Subpoenaing Public School Teachers During School Hours.

HB 5578 would amend the Illinois Code of Civil Procedure to change how public school employees can be subpoenaed to testify during school hours. The amendment requires (1) the issuing party to first obtain a court order for the subpoena, (2) consultation with the school district to schedule the appearance to minimize disruption in the classroom and (3) reimbursement to the school district for the cost of a substitute teacher or other temporary staff, as well as the witness and mileage fee. Any conflict about the fees will be determined by the court. This bill remains in the House. On March 12, 2008, the bill was amended in the House to specify that the court order requirement does not apply if the school district, board of education, or school employee is a named party. As amended, the bill also provides that any action that concerns a recognized collective bargaining unit of public school employees is exempt from the requirements for subpoenas of public school employees.

HB 4270: Expanding Requirements for Responses to Public Records Act Requests.

HB 4270 would amend the Freedom of Information Act to require that a public body responding to a request for inspection and copying of public records provide the records in any form or format requested if the records are readily reproducible in that form or format. It would further require that a public body make reasonable efforts to maintain its records in reproducible formats. Finally, it would require that a public body make a reasonable effort to search for records in electronic format unless the search would significantly interfere with the operations of the automated information system. This bill remains in the House. On February 27, 2008, the bill was amended to state that the requirements would apply only to documents created after the bill's effective date. This bill was tabled on March 6, 2008.

HB 4219: Creating Identity Protection Act Limiting Use of Social Security Numbers.

HB 4219, which has passed both the Senate and the House, would create the Identity Protection Act. The Act would prohibit State and local government agencies from using an individual's social security number in certain ways, including, for example, publicly displaying the number, printing the number on a card required to access products or services, requiring an individual to transmit his or her social security number over a non-secure internet, and printing social security numbers on mailed materials unless federal law requires that the number be on the document. The restrictions would be subject to enumerated limitations, including among others, disclosure pursuant to court order, and collection of social security numbers to prevent fraud. The Act would require local government agencies to create an identity protection policy, and violation of the Act would be a Class B misdemeanor. Finally, a home rule municipality could not regulate social security numbers in a way inconsistent with the Act.

SB 1475: Definition of Catastrophic Injury Under Public Safety Employees Benefits Act.

SB 1475 would add a definition of catastrophic injury to the Public Safety Employees Benefits Act, defining it as: "a grievous or serious injury or impairment of a nature that is sufficient to permanently preclude the injured employee from performing any gainful work." The bill would also permit an employer to require an employee to submit to examination by up to three licensed physicians. This bill remains in the Senate.

SB 1296: Providing That Apportionment of Fault For Joint Liability Applies Only to Parties Remaining In Case When Liability Imposed.

SB 1296 would change Section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117) to specify that where joint liability is imposed, the apportionment of fault would only apply to the parties still remaining in the case after liability is imposed. Apportionment would not apply to defendants that had been dismissed for any reason, including settlement. This bill was passed by the Senate on March 20, 2007, and remains in the House.

HB 0511: Defining As Public Record Only That Portion of a Settlement Agreement That Shows The Total Amount of Money To Be Paid or Value of Other Agreement.

HB 0511 would amend the Illinois Freedom of Information Act to include in the definition of "public records" only that portion of a settlement agreement entered into by or on behalf of a public body that shows the total amount of money to be paid or financial value of any other agreements in the settlement (if the information is not otherwise exempt under the Act), as well as the amount of money expended by or on behalf of the public body for the prosecution, defense, or settlement of the litigation. This bill was passed by the House on May 3, 2007, and remains in the Senate.

NEW CHANGES IN FEDERAL LAW THAT MAY AFFECT YOU

Genetic Information Nondiscrimination Act of 2008.

The Genetic Information Nondiscrimination Act (GINA), which became law on May 21, 2008, prohibits insurance companies from using genetic information for rate-setting and coverage exclusion purposes, and prohibits employers from using such information in making employment decisions. It amends the Employee Retirement Income Security Act, the Public Health Service Act, the Internal Revenue Code, and the Social Security Act relating to Medigap.

Free Downloads: Ancel Glink features an online library with publications written by the attorneys in our firm and addressing a wide range of issues affecting public entities. Visit www.ancelglink.com/publications to take a look. Featured in our publications is the downloadable Illinois Tort Immunity Handbook, which provides an overview of governmental tort liability and the immunities available to Illinois public entities and their employees. Click here to download Illinois Tort Immunity Handbook.

RISK MANAGEMENT SEMINARS AND EVENTS

Illinois Association of Park Districts Conference
Legal/Legislative Part 1, Session #110
Friday, January 25, 2008
Robert K. Bush
Chicago, Illinois

Illinois Association of Park Districts Conference
Directors and the Law, Session #115
Friday, January 25, 2008
Robert K. Bush
Chicago, Illinois

Illinois Association of Park Districts Conference
Hiring, Firing, Suspensions, and Dealing with Unions, Session #124
Friday, January 25, 2008
Margaret Kostopulos
Chicago, Illinois

Illinois Association of Park Districts Conference
Freedom of Information Act: Dealing with the Crazies, Session #123
Saturday, January 26, 2008
Robert K. Bush, Scott A. Puma
Chicago, Illinois

Illinois Association of Park Districts Conference
Open Meetings Act, Session #119
Saturday, January 26, 2008
Robert K. Bush, Scott A. Puma
Chicago, Illinois

Northern Illinois Fire Protection Association
Residential Fire Sprinkler Summit
Wednesday, February 20, 2008
Mary Spiegel
Addison, Illinois

Illinois State Bar Association
Hot Topics for Your Civil Practice - Governmental Liability
Friday, May 16, 2008
Lucy B. Bednarek
Chicago, Illinois

Metropolitan Library System
Employment Liability Issues of Your Library
Tuesday, June 3, 2008
Margaret Kostopulos, Darcy Proctor
Burr Ridge, Illinois

Illinois Library Association
Interviewing - What You Can & Can Not Ask
Friday, September 26, 2008
Margaret Kostopulos, Tiffany Nelson, Robert A. Porter
Chicago, Illinois

Illinois Library Association
Confidential Library Records
Friday, September 26, 2008
Derke Price, Britt Isaly, Robert A. Porter
Chicago, Illinois

Albany Government Law Review Symposium on Religion & Land Use
October 2-3, 2009
Julie Tappendorf
Albany, New York

ABOUT ANCEL GLINK DEFENSE

The attorneys who comprise Ancel Glink's defense litigation group are dedicated almost exclusively to defending governmental entities in tort, civil rights, employment, business and other claims and lawsuits. In addition to defending municipalities, school districts, park districts, townships and other entities in lawsuits in state and federal courts, Ancel Glink's litigation group handles appeals, administrative hearings, critical incident crisis management, loss control training and seminars, file audits, and special consultation. Visit our web-site at www.ancelglink.com or email us at e-news@ancelglink.com.

Editors: Thomas G. DiCianni and Lucy B. Bednarek
Contributors: Lucy B. Bednarek and Jody Knight
Design: Jill Koch, Koch Creative

This newsletter is provided as a service to our public sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Be sure to consult with an attorney before taking action based on the contents. We welcome comments and questions. Permission to reproduce is granted provided credit is given to Ancel Glink Defense E-News and a link is provided to www.ancelglink.com. This may constitute advertising material as defined under the Illinois Rules of Professional Conduct.