Municipal Case Alert: Reed v. Town of Gilbert

A recent Supreme Court decision will be changing the way that municipalities implement and enforce their sign ordinances. In Reed v. Town of Gilbert, the U.S. Supreme Court held that a municipal ordinance creating different categories of signs (temporary, political, and ideological) and subjecting each category to different regulations, was content-based on its face and accordingly was subject to strict scrutiny. Upon engaging in strict scrutiny analysis, the Court determined that the ordinance was not narrowly tailored to serve a compelling state interest, and was therefore unconstitutional. This marked a significant change from the Court’s prior jurisprudence (where previously content-based distinctions were deemed permissible so long as differing viewpoints within those categories were provided equal treatment) and will result in most municipalities being required to update their sign ordinances.

Facts of the Case

The facts of that case are as follows. The Town of Gilbert’s Sign Code had a generally applicable provision prohibiting outdoor signs without a permit, but created twenty-three (23) categorical exceptions to this provision. The Petitioners, Good News Community Church, sought to advertise their church services pursuant to the Town’s exception for “temporary directional signs relating to a qualifying event.” The Code stated that such signs could be no larger than six (6) square feet and could only be displayed for twelve (12) hours prior to the event and one (1) hour following. The church was then cited for exceeding the time limits for displaying its signs (the church regularly removed the signs within a few hours of the last church service, but not within the one (1) hour time limit) and for failure to include the date of the event (instead, the sign contained the location and time of services). Under the Town of Gilbert’s Sign Code, “temporary directional signs relating to a qualifying event” were subject to the most stringent size and temporal requirements. By way of comparison, “ideological signs” were allowed to be up to twenty (20) square feet and had no limits on the time that they could be displayed. “Political signs” were allowed to be sixteen (16) square feet and were granted a display window of sixty (60) days prior to a general election and fifteen (15) days following.

Court’s Analysis

Upon review, the Court held that the Village’s Sign Code constituted content-based regulations that did not withstand strict scrutiny. In its analysis, the Court noted that “government regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed” (emphasis added). It found that by creating different categories of signs and then subjecting each category to different regulations, the Code was content based on its face – it made no difference that the Town was neutral to particular viewpoints or ideals within those categories. It went so far as to describe the Town’s Sign Code as “a paradigmatic example of content-based discrimination” in that it “singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.”

In addressing the implications of its decision, the Court articulated “the Town has ample content neutral options available to resolve problems with safety and aesthetics, such as: size building materials, lighting, moving parts, and portability.” Addressing the strict scrutiny standard, the Court stated that “a sign ordinance narrowly tailored to the challenges or protecting the safety of pedestrians, drivers, and passengers – such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses – may well survive strict scrutiny.”

In his concurring opinion, Justice Alito, joined by Justice Kennedy and Justice Sotomayor, further opined with regard to the types of regulations that were not content based, including: size of signs, locations in which signs may be placed, lighting on signs, whether a sign can have a scrolling message or whether such message must be fixed, distinguishing between on-premises and off-premises signs, total number of signs allowed, and time restrictions on signs advertising a one-time event. Justice Kagan, joined by Justice Ginsburg and Justice Breyer and concurring in the judgement only, noted that as a consequence of the majority’s sweeping rationale, “our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.” Noting these sweeping implications, Justice Kagan even went so far as to warn that the Court “may soon find itself a veritable Supreme Board of Sign Review.

Implications for Municipalities and Subsequent Case Law

This decision represents a marked change in the Court’s application of the First Amendment. As such, nearly all municipalities will be required to reevaluate their sign ordinances for content-based distinctions. While it is clear that the government retains the ability to restrict the aesthetics and location of a sign, any differential treatment based on content will likely fail a strict-scrutiny analysis.

Moreover, this case is also important to understand because its implications extend well beyond that of a sign ordinance. The Illinois Supreme Court has already decided at least one case, based upon Reed, in which it declared a city’s panhandling ordinance unconstitutional. Other courts have invoked Reed when addressing issues such as election sign regulations, robocalling laws, and solicitor licensing. It is likely that in the future, these principles will continue to be extended into many other areas of governmental-regulated speech.

By way of illustration, the following cases have been decided post-Reed and apply the principles discussed herein:

7th Circuit Court of Appeals

Norton v. City of Springfield, 806 F.3d 411 (2015).

The City of Springfield had a panhandling ordinance that defined panhandling as an “oral request for the immediate donation of money.” Accordingly, the City allowed signs and requests for deferred donations, but prohibited signs and requests for immediate donations. This ordinance was challenged on the grounds that it constituted unlawful content discrimination. Citing Reed, the court noted that Reed “effectively abolishes any distinction between content regulation and subject matter regulation” and that “[a]ny law distinguishing one kind of speech from another by reference it its meaning now requires a compelling justification.” As such, it found that the City’s panhandling ordinance was unconstitutional.

BBL, Inc. v. City of Angola, 809 F.3d 317 (2015).

In addressing a City’s zoning actions with regard to converting a restaurant to an adult entertaining venue, the court invoked the “secondary effects” doctrine to uphold the regulation. The secondary effects doctrine establishes that “as long as one purposes of the ordinance is to combat harmful secondary effects, the ordinance is regarded as content neutral…and thus intermediate scrutiny applies.” In citing this doctrine, the court specifically referenced Reed, stating “we don’t think Reed upends established doctrine for evaluating regulation of businesses that offer sexually explicit entertainment, a category the Court has said occupies the outer fringes of First Amendment Protection.”

4th Circuit Court of Appeals

Center Radio Co. v. City of Norfolk, 2016 U.S. App. LEXIS 1498

The City’s sign code had a provision establishing size and location restrictions, but exempted certain “governmental flags or emblems” and “works of art” from this limitation. The question presented on appeal was whether this provision of the code was content-neutral or content-based, and what corresponding level of scrutiny was required. Citing Reed, the court held that the provision was content based and could not withstand strict scrutiny. While the City cited aesthetic concerns as its basis for the regulation, the court opined that while aesthetics and safety were “substantial government goals,” they do not constitute a compelling government interest. Even assuming the interests were compelling, the court went on to establish that like Reed, the exemptions were “hopelessly under inclusive.”

United States District Court for the District of Minnesota

Working Am., Inc. v. City of Bloomington, 2015 U.S. Dist. LEXIS 151524

A non-for-profit labor advocacy organization challenged the City of Bloomington’s ordinance requiring that it obtain a “solicitor license.” The basis for the argument was that the City ordinance only regulated certain types of solicitations. Specifically, it required a permit for “speech that has the function or purpose of generating money or property on behalf of a person, organization, or cause” but did not require a permit for an individual who is trying “to raise awareness for an issue or to collect signatures for a proposed ballot initiative. Citing Reed, the court held that the City’s solicitor ordinance was clearly content based, in that determining whether the solicitation falls under “regulated activity” depended entirely upon the content of the message. Because the ordinance could not pass strict scrutiny, it was found to be unconstitutional.

United States District Court for the Northern District of Indiana

Women’s Health Link, Inc. v. Fort Wayne Public Transp. Corp., 2016 U.S. Dist. LEXIS 713

Women’s Health Link, a free referral resource for women’s healthcare issues, sought to advertise its counseling services on ads placed inside the City’s buses. The City denied this request, based upon the fact that the advertisement violates its policy prohibiting advertisements of a religious, political, or moral nature. Acknowledging that the City’s restrictions were content based, the court distinguished the case from Reed based upon the fact that the inside of the bus was not a public forum and granted the city’s motion for summary judgment. The case has been appealed.

By: Laura M. Julien

To learn more about the implications of this decision, and how it may affect you as a municipality, or for information about any other municipal law issue, please contact Steven A. Andersson, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number: 630-801-9699, or by E-mail at:;; and

Reversal of Attorney General PAC Opinions Upheld by Fourth District Appellate Court

Case Law Alert: Open Meetings Act

Reversal of Attorney General PAC Opinions Upheld by Fourth District Appellate Court

On December 15, 2015, the Illinois Appellate Court upheld the Circuit Court’s reversal of at least two binding public access counselor (“PAC”) opinions issued by the Attorney General of Illinois (“AG”) with regard to purported Open Meetings Act (“OMA”) violations in Bd. of Educ. of Springfield Sch. Dist. 186 v. Attorney Gen. of Illinois & Molly Beck.

The underlying action arose when the Board of Education of Springfield School District No. 186 (“School Board”) acted to terminate the Superintendent’s employment. Prior to acting on the Superintendent’s termination in open session, the School Board convened in closed session to review and sign (but not date) the Superintendent’s separation agreement. It was undisputed that the topic of the closed session, the termination of personnel, was appropriate to discuss in this forum. Following its review of the agreement, the School Board then reconvened into open session and voted upon the Superintendent’s termination and approved the separation agreement, which was passed by a 6-1 vote. Following its approval in open session, a date was added to the separation agreement next to the trustees’ signatures.

A reporter, acting on behalf of a local newspaper, challenged the School Board’s actions on two separate grounds. First, it was alleged that signing the separation agreement during closed session constituted impermissible “action” by the School Board. This argument was supported by the premise that the act of signing the agreement was the equivalent of approving the agreement, in violation of OMA which provides that the action of all public bodies must occur during open session. The AG agreed, stating that the act of signing the document “did constitute the taking of a final action in violation of section 2(e) of [OMA]” and issued a binding opinion to that effect.

Upon instruction of the circuit court, the AG addressed a second issue, namely, whether the School Board’s subsequent vote in open session constituted a ratification of its prior action. The AG found that it did not, because it “failed to adequately inform the public of the nature of the matter under consideration or the business being conducted.” Specifically, it was argued that the item, which appeared under the heading “roll call action items” and entitled “Approval of a Resolution Regarding the Agreement Between Superintendent Milton and the Board,” was not sufficient to “provide the public with information from which it might comprehend the purpose and effect of the Board’s action.” The PAC then issued its second binding opinion. The circuit court, in two separate proceedings, disagreed with the AG and found in favor of the School Board and determined that no OMA violations had occurred. The news reporter and AG appealed both determinations.

The appellate court addressed both issues. First, it reviewed the issue of whether a trustee’s signature on a document executed during a closed board session constituted a violation of OMA. The court found that it did not. Citing Howe v. Retirement Board of the Fireman’s Annuity & Benefit Fund, 2013 IL App (1st) 122446, the court noted that “no public body in Illinois subject to the *** Act can take final action by merely circulating some document for signature and not voting on it publicly.” It further noted that it has long been understood that Section 2 [of OMA] prohibits any final action being taken in closed session and it has long been held that a board convening to closed session was inconsequential so long as the ultimate vote was taken in open session (See also, Jewell v. Board of Education, 19 Ill. App. 3d 1091, 1094-95 (“the fact that there were two votes taken, one at the closed and one at the open session, should not be considered a violation of the act. The crucial fact is that the final vote was taken in open session”).

Addressing the second issue, the court examined whether notice was properly posted, and specifically, whether the item, as listed on the agenda was sufficient to be acted upon. The court held that it was. The relevant statute provides the following with regard to final action: “No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of business being conducted.”

Upon examination of the Board’s website, the court located the agenda, which listed the item as “Approval of a Resolution Regarding the… Agreement… between… Milton and the Board” as well as a link to a copy of the proposed agreement. It found this to be sufficient notice to the public and rejected the AG’s reliance on legislative intent (“where statutory language is clear and unambiguous – as in this instance – we need not resort to extrinsic evidence to aid our analysis.”).

By: Laura M. Julien

If you have any questions concerning the Open Meetings Act, Freedom of Information Act, or any other issues concerning public bodies, please contact Peter K. Wilson, Bernard K. Weiler, Steven A. Andersson, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at:;;;; and

District 211 reaches agreement with the Office for Civil Rights (“OCR”) regarding transgender student’s access to opposite gender locker room; considers rescinding the agreement based on alleged mischaracterization of its terms by OCR

The controversial and nationally-publicized standoff between Palatine-based District 211 and the Office for Civil Rights (“OCR”) came to a temporary end in early December 2015, when the District approved a resolution agreement with OCR stemming from a transgender student’s 2013 complaint that the District discriminated against her by not allowing her to use the girls’ locker room. The agreement was formed following contentious discussions and negotiations between the District and OCR, which included OCR threatening to pull federal funding from the District unless the student was allowed full access to the girls’ locker room. OCR also issued findings stating that the District violated federal law when it denied the student access to the girls’ locker room; marking the first time OCR has found a school district in violation of civil rights laws over transgender issues.

Ultimately, the resolution agreement provides in part that the student will be allowed access to the girls’ locker room provided she use “privacy curtains” when changing. Following the District’s approval of the agreement, OCR reportedly characterized the agreement as allowing for unrestricted access to the locker room, and representing a policy that would apply District-wide to all transgender students. The District disagreed with this characterization and ultimately convened a special board meeting to consider rescinding the agreement due to what it believed to be a “bad-faith” characterization of its terms by OCR. However, following a clarifying statement issued by OCR that the agreement applies only to the specific student, and a lengthy public comments session at the special board meeting, the District declined to vote on whether the agreement should rescinded, leaving the agreement in place.

For a more detailed report on this story by the Chicago Tribune, visit:

President Obama Signs Every Student Succeeds Act (“ESSA”) – Changes to Public Education Forthcoming

On December 10, 2015, President Obama signed the Every Student Succeeds Act (“ESSA”) into law. This Act will bring significant changes to public education, most notably, giving the states greater control over student achievement measures, particularly with regard to the lowest performing school. Additionally, it will afford school districts greater discretion in evaluating teachers and strategizing for their retention. In effect, ESSA will displace most measures put into place through No Child Left Behind (“NCLB”).

While some are celebrating (President Obama even noting that the bipartisan bill-signing was a “Christmas miracle”), others have expressed doubt that the effects of these reform efforts will be felt at the school-based level. While the effects of this act is yet to be seen, some of the most important changes brought forth by ESSA are outlined below:

  • Changes to testing and accountability requirements – Continues certain annual testing requirements (annual math and reading testing 3rd-8th grade, once at high school level) but encourages assessment using additional, broader measures; allows states to audit time spent on testing and create “targets” using federal funds; removes adequate yearly progress (“AYP”) requirements and replaces with state-created goals with interim reviews
  • Shifts greater authority to the states with regard to school evaluations and reform measures – (i.e. states can create their own accountability systems utilizing a range of statutory factors, considering factors beyond test scores; states can assign weight to factors, with some restrictions)
  • Removes sanctions and interventions prescribed by NCLB ­– States to identify school districts needing “comprehensive support and improvement” and implement a collaborative school improvement plan, engaging both the local educational agency and community stakeholders
  • Addresses early childhood education – Allocation of federal grant money to preschools with low-income populations through a Preschool Development Grant of up to $250 million each year.
  • Teacher Training and Development – Removes “highly qualified teacher” requirement imposed by NCLB and does not provide mandated teacher evaluation requirements; allows states and districts to utilize Title II funds for a range of teacher performance and development-related activities.

Over the course of the next year, we will continue to provide further information pertaining to the transition time table and implications for local school districts.

By: Laura M. Julien

If you have any questions concerning ESSA, or other school law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at:;;; and

Senate Bill 100- Big Changes for School Districts and Student Discipline

The recently enacted Senate Bill 100 (Public Act 099-0456) goes into effect September 15, 2016 and makes significant changes to the Illinois School Code provisions on student discipline. The School Code will now distinguish between “short-term” out-of-school suspensions of one to three days, and “long-term” out-of-school suspensions of four or more days, as well as expulsions. The revisions set forth clear standards that must be met in order for a school board to suspend or expel a student, while placing a clear emphasis on the need for detailed documentation supporting such discipline. The changes in the law will require school districts to re-evaluate their student handbooks and board policies to ensure that they incorporate these new requirements, as well as others set forth by the Bill, including a prohibition on “zero-tolerance” disciplinary policies and mandatory annual meetings for parent-teacher advisory committees. Contact MWWRA’s school attorneys for a more comprehensive review of the changes mandated by Senate Bill 100 and how they may affect your school district or student.

The “Berlin Wall of Steel:” What School Districts and Municipalities Can Learn From the Crystal Lake South High School Bleacher Case

Crystal Lake South High School made headlines this fall when the Illinois Supreme Court ruled that the school was required to follow the city zoning and storm water ordinances, despite the fact that it was a public school operating under the Illinois School Code. Significantly, this will likely result in the recently constructed 1.2 million dollar bleachers being torn down, pursuant to the Circuit Court’s 2014 order, which had been stayed pending appeal.

The lawsuit was initiated when residents, who owned properties abutting the football field (and the newly constructed bleachers), complained that the bleacher expansion project was unlawful and negatively impacted their property values (dubbing it the “Berlin Wall of Steel”). When the City of Crystal Lake learned of the project, it informed the school board that it must cease all construction activities until all of the city’s zoning, storm water, and permitting requirements were met. The school district ignored this directive, maintaining that as a school district engaging in construction activities on school property, it was exempt from municipal zoning provisions. As part of its response, the school district filed a third-party complaint against the City of Crystal Lake, seeking declaratory judgment on the issue of whether, as a public school district, it was subject to the city’s zoning and storm water regulations.

The Illinois Supreme Court found in favor of the city, holding that the school district was subject to both the city’s zoning and storm water ordinances. In its analysis, it disagreed with the school district’s characterization of Section 10-22.13a of the Illinois School Code (provision authorizing a school district to seek zoning changes). While the district contended that this section of the statute was permissive, rather than mandatory, the Court found that the district’s interpretation was unreasonable because it was not supported by the plain language of the statute. In furtherance of its analysis, the Court cited Wilmette Park District v. Village of Wilmette, 112 Ill. 2d 6 (1986) as analogous, noting “absent an explicit statutory grant of immunity, the mere fact that…a local unit of government, has a statutory duty…cannot be extended to support the inference that it can exercise its authority without regard to the zoning ordinance of its host municipality.”

The Court also rejected the school district’s contention that the Illinois School Code limited review of school construction plans to the provisions set forth in the “Health/Life Safety Code for Public Schools.” Again, citing the plain language of the statute, the Court found that while the Health/Life Safety Code established minimum construction standards for facilities, it did not conflict with the type of issues addressed in zoning, and therefore did not preempt the city’s zoning and storm water ordinances.

While the City of Crystal Lake is a home-rule municipality, the court’s analysis of the issue and its findings regarding the municipal authority to regulate zoning matters does not cite any authority that would exclude non-home rule municipalities from its holding.

By: Laura M. Julien

For more information on public land use and zoning matters, please contact Steven A. Andersson, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at:;; and

When Technology Outpaces the Law – The Illinois Freedom of Information Act and Personal Electronic Devices

Openness and transparency in government is critical to garnering the confidence and support of the general public. From the nation’s highest offices in the White House to the day-to-day operations in a local city hall, the operations of government are continuously under scrutiny.

Enacted on July 1, 1984, the Illinois Freedom of Information Act (“FOIA”), like the federal Freedom of Information Act, was adopted on the premise that “all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees…” and to promote “transparency and accountability of public bodies at all levels of government.”

However, since its inception, technological advances have moved faster than the law has been able to keep up (the law itself acknowledges that “technology may advance at a rate that outpaces its ability to address those advances legislatively”). In recent years, devices such as smart phones have not only made information readily available, but also increased the number of ways in which parties can electronically communicate with one another (i.e. text messaging, e-mailing, and video chatting). However, the law at present only generally references “electronic communications” and makes no distinction between the various methods that one may utilize. Moreover, many entities have implemented “bring your own device” policies, requiring employees to conduct work-related business on their personal devices. As a consequence, determining whether information belongs to the public or private domain has become increasingly more difficult.

This is illustrated by a recent controversy in Chicago, which raises the question whether e-mails, pertaining to public matters but sent from private accounts or personal devices, are “public records” under FOIA. On September 24, 2015, the Chicago Tribune sued the City of Chicago Office of the Mayor and the Mayor for injunctive and declaratory relief for, amongst other things, production of “improperly held records” from “private” accounts. The Chicago Tribune asserted that such information, insofar as it pertains to public business, remains subject to FOIA. The Office of the Mayor disagrees, asserting the fact that such information was not in possession or under the control of the public body.

A similar issue was addressed in City of Champaign v. Madigan, 992 N.E.2d 629 (2013), a case in which members of the city council were found to be sending text messages to one another on their personal electronic devices during a city council meeting. Despite the private nature of the device, the crux of the court’s assessment came down to examining what constitutes the “public body.” In that case, the text messages were found to be “public record” by virtue of the fact that they were sent at a time while the public body was convened. The court, however, acknowledged “notably, section 2(a) [of FOIA] does not include the individual members of those bodies in the definition of ‘public body.’” Citing Quinn v. Stone, 570 N.E.3d 676, 677 (1991), the court further emphasized that “an individual city council member, alone, cannot conduct the business of a public body… [i]nstead, a quorum of city council members is necessary to make a binding decision.”

However, even in the event that the court does take on a FOIA question, the decisions are often narrow in scope. While basic principles can be imputed, public entities have been placed in the precarious position of having to serve as both the gatekeeper and the arbiter of such requests, careful to strike the correct balance between a host of competing interests (an employee’s right to privacy in their personal information with the public’s right to access public information), while simultaneously applying a law that admittedly can’t provide clear guidance to technological advances.

There are steps that public employers can take to help mitigate some of these issues. First and foremost, it is imperative that all public employees understand FOIA and its various implications. Second, public employers should make an ongoing effort to stay abreast of technological advances, create strong internal policies regarding the use of technology, and conduct regular training sessions regarding the same. These policies should encourage means that help segregate information in the public domain from that of the employee as a private individual. Finally, public employers should not hesitate to contact legal counsel if they have any questions, as handling these matters correctly from the beginning can help avoid potential problems down the line.

By: Laura M. Julien

For more information on the Freedom of Information Act, and how it may affect you as an employer or employee, or any other employment law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at:;;; and