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Legal Summaries
Illinois newly amended eavesdropping statute
Illinois' controversial eavesdropping statute was finally amended,effective December 30, 2014, to replace the version of the statute that the Illinois Supreme Court struck down as unconstitutional in March 2014.

Probation officers are peace officers
Criminal Law: Appellate Courts: Affirmed: Probation officers “are considered peace officers under Illinois law.” Thus, a corollary of implied authority may be drawn from the recognized authority of other peace officers. In Illinois, a misdemeanor offense maybe charged by a police officer

Self-defense claims
Illinois law allows a defendant to assert self-defense as an affirmative defense to a charge for conduct that might otherwise constitute a crime under 720 ILCS 5/7-1. In the statute, the crimes which a defendant can use a theory of self-defense are not delineated, however, the defense is normally reserved for crimes against a person

Worker's Comp case
Where county deputy sheriff left his assigned area (and county of employment) while on duty for a personal errand and was thereafter injured outside the county of employment but while responding to a call to assist a fellow deputy, claimant was "injured in the course of his employment," and Commission decision that he was not, was erroneous.

Pension Credit for Previous Years of Service
Public Pension Law: Affirmed: Police pension board decision that retiring police officer was not entitled to credit for years of service as a police dispatcher before becoming a police officer, as dispatcher's duties were not "investigative," not erroneous. McBride, J



Minimization of the Exclusionary Rule
The Fourth Amendment provides that people shall be free from unreasonable searches and seizures. The United States Supreme Court first acknowledged the concept of the exclusionary rule in 1914, when, in Weeks v. United States, 232 U.S. 383, 58 L.Ed. 562, 34 S.Ct. 341 (1914), the Court held that evidence seized in violation of the Fourth Amendment could not be used at trial by prosecutors.

Chain of Custody
When dealing with narcotics cases, it is an important piece of the state’s case to establish that the defendant was in possession of the controlled substance with which he or she is charged. It is axiomatic that the same items which were recovered from a defendant are tested, and a proper chain of custody is kept at all times.

Criminal Law and the Garrity Rule
Prior to trial, defendant filed a motion to bar admission of the results of a breath test. Following a hearing on that motion, the trial court found that the breath test constituted an invalid search and seizure and granted the officer’s motion to bar admission of the test results. The State now appeals that suppression order to the Appellate Court.

National Labor Relation Board Case/ Three Member Panel —Right for Union Rep to be Present During a Drug Test

National Labor Relation Board Case
NLRB rules union dues checkoff survives contract expiration.


Illinois Supreme Court rules that public sector retiree health subsidies are constitutionally protected benefits.
The Illinois Supreme Court ruled in Kanerva v. Weems by a 6-1 margin that state-subsidized retiree health coverage premiums are subject to the pension protection clause of the Illinois Constitution.

Victim of Identity Theft?

Check out the FTC’s website

https://identitytheft.gov

Millions of Americans have been victims of identity theft. And until now, there has not been a single site where they can quickly file an official complaint, and then get real, personalized help. On January 28, 2016, FTC made an announcement of their new web site, to assist victims of Identity Theft. The purpose of the site is to “allow consumers who are victims of identity theft to rapidly file a complaint with the FTC and then get a personalized guide to recovery that helps streamline many of the steps involved.”

For more information, visit the above FTC website.

Right to Work is Reserved for States to Decide, not Counties

Federal District Court in Kentucky Feb.2016

About half of the states in the United States are what is called “rightto- work” states where employees do not have to join a union to work at a unionized company. Section 14(b) of the National Labor Relations Act specifically states, “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” Some counties have broadly read this clause to mean that the creation of right-to work counties (and by that extension, cities, and “zones”) can determine to be right-to-work even though the state as a whole is not. These counties are wrong.

A federal district court in Kentucky recently found that the National Labor Relations Act preempts a county right-to-work ordinance banning the use of union-security agreements between employers and unions and regulating other practices that are either permitted or prohibited by federal law. Unions successfully argued that Section 14(b) of the Act allows states or territories to prohibit union-security agreements; it did not authorize counties to enact a right-to-work measure.

Illinois Supreme Court Case: Coleman v. East Joliet Fire Protection District et al., 2016 IL 117952,

Summary of the Abolishment of the “Public Duty Rule” and possible impact on Police and Fire employees

The Local Governmental and Governmental Tort Immunities Act (745 ILCS 10/1, et al.) is a regular encounter for practitioners who either sue local governments directly or through contribution claims. This Act provides many challenges and hurdles, but looming in the background to these impediments was the common law doctrine known as the "public duty rule". Last week the Illinois Supreme Court abolished the public duty rule in Coleman v. East Joliet Fire Protection District, 2016 IL 117952 (Jan. 22, 2016) in a 4 to 3 decision.

The public duty rule in essence provides that governmental entities owe duties to the public as a whole and not no duty of care to individual members of the general public in providing governmental services such as police and fire protection services. Since the enactment of the local governmental immunity acts such as 745 ILCS 10/1 courts have struggled as to how to reconcile both principles. Until Coleman the main way both principles were applied was by stating that the issue of whether a duty is owed is distinct as to whether immunity applies. In abolishing the public duty rule in Coleman the court reasoned that the two issues have become muddied because prior to addressing whether immunity applies a court needs to determine if a duty exists and a duty analysis is irrelevant where immunity applies. The court also reasoned that application of the public duty rule is incompatible with the legislature's grant of limited immunity in willful and wanton cases because application of the public duty rule precludes pursuing an action for willful and wanton conduct in contravention of the clear legislative decision to allow for recovery against a public entity under certain circumstances.

Immediate Impacts The Coleman decision likely will increase the number and duration of lawsuits filed against public employees, despite the immunity provisions of the Tort Immunity Act. In addition, public employees now are at risk of liability for willful and wanton conduct, unless the Illinois Legislature acts to fill that gap. Additionally, public employees rightly rely on consistency in the court’s decisions on critical issues such as immunity and liabilities. The court’s willingness here to abandon a long-held precedent adds unfortunate uncertainty to these and other matters important to local governments.

In any case, the Illinois Legislature has the power to close the liability gap created by the abolition of the public duty rule. The Legislature may codify the rule or amend immunity laws to extend to willful and wanton conduct under certain circumstances.

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Illinois Supreme Court Vacates 2% Wage Increase for State Employees
Last week, the Illinois Supreme Court vacated an arbitration award requiring the State to pay a 2% wage increase to certain state employees who are represented by the American Federation of State, County and Municipal Employees, Council 31 (“AFSCME”). The Court’s ruling is likely to have a major impact on the ongoing negotiations between AFSCME and the State regarding a successor collective bargaining agreement (“CBA”), and Illinois taxpayers more generally.

In State of Illinois v. AFSCME Council 31, the CBA between the State and AFSCME called for a 4% wage increase for state employees to take effect on July 1, 2011. As part of concession negotiations, and in recognition of the ongoing fiscal crisis then facing the State, the parties entered into two cost savings agreements that included, among other things, a partial deferral of the scheduled increase, amounting to a 2% increase to take effect on July 1, 2011, with the remaining 2% to be implemented on February 1, 2012. In his Fiscal Year 2012 Budget, Governor Pat Quinn included appropriations to fully fund the increases reflected in these agreements. However, the General Assembly did not appropriate sufficient funding to increase all employees’ salaries, and 14 agencies were unable to fully fund the raise.

AFSCME filed a grievance under the CBA and demanded arbitration to resolve the dispute. Before the arbitrator, the State relied heavily upon Section 21 of the Illinois Public Labor Relations Act (“IPLRA”), which provides that all collective bargaining agreements between public employers and the exclusive representatives of their employees are “subject to the appropriation power of the employer…” According to the State, Section 21 mandates that expenditures by the executive branch pursuant to a negotiated collective bargaining agreement are contingent on the existence of appropriations by the General Assembly, and that the Appropriations Clause of the Illinois Constitution contains the same mandate. The State also argued that Section 21 of the IPLRA was incorporated into its CBA with AFSCME. On the other hand, AFSCME argued that Section 21 should not be read to make collective bargaining agreements subject to the approval of the General Assembly.

The arbitrator sided with AFSCME, finding that the State violated its contractual obligations and ordering the State to pay the salary increases. The arbitrator declined to consider the effect of Section 21 of the IPLRA, concluding that he lacked the authority to interpret this statutory provision. The State sued to vacate the arbitration award in circuit court, and the parties eventually litigated whether the State, in fact, had sufficient funds to honor the salary increases. The court ruled in favor of AFSCME and upheld the arbitrator’s award. On appeal, the appellate court likewise affirmed the arbitrator’s award and rejected the State’s argument that, based on Section 21 of the IPLRA, the CBA was subject to the appropriation power of the General Assembly.

Reversing the arbitrator and both reviewing courts, the Supreme Court ruled in favor of the State and ultimately vacated the award. Recognizing that judicial review of an arbitration award is extremely limited, the Court rejected the State’s initial challenge to the arbitration award, finding that, as a matter of law, the award drew its essence from the CBA.

However, the Court vacated the award because its enforcement would violate paramount considerations of public policy: the General Assembly’s power to make appropriations. The Court cited both the Appropriations Clause and Section 21 of the IPLRA to hold that, although the State had the authority to bargain over wages with its employees, public policy gives the power to appropriate for the expenditure of public funds to the General Assembly, and only the General Assembly. According to the Court, taken together, Section 21 of the IPLRA and the Appropriations Clause establish “a well-defined and dominant public policy under which multiyear [CBAs] are subject to the appropriation power of the State, a power which may only be exercised by the General Assembly.” In light of this public policy, the Court vacated the arbitration award.

The Court’s ruling could have far reaching implications for future collective bargaining between the State and its employees. In a dissenting opinion, Justice Kilbride argued that the State may use the Court’s ruling as an end-run around future obligations. According to Justice Kilbride, the Court’s decision “interjects uncertainty into the State’s responsibility for its contracts and will likely impair its ability to secure future contracts with its employees and vendors.”

Unions Win in US Supreme Court 4-4 Split, Allows Public Unions to Continue Collecting Agency Fees from Non-Members 
On March 29, 2016, the Supreme Court issued a one-sentence decision in Friedrichs v. California Teachers Association: “The judgment is affirmed by an equally divided Court.” Friedrichs is the second 4-4 decision of the term, a circumstance brought about by the passing of Justice Antonin Scalia in February.

The plaintiffs in Friedrichs sought to overturn a 1977 Supreme Court decision, Abood v. Detroit Board of Education, which held that public unions can make non-members pay agency fees. Both the District Court and the Ninth Circuit had dismissed the plaintiffs’ case, finding that the outcome was controlled by Abood. Therefore, the plaintiffs’ only chance of changing the law and overturning Abood was having the Supreme Court find in their favor. However, with the 4-4 split of the Court, the decision of the Ninth Circuit was affirmed, leaving intact Abood’s holding and allowing public unions to continue collecting agency fees from non-members.

Many commentators had believed that Justice Scalia would vote to overturn Abood, which would have resulted in a 5-4 decision in the plaintiffs’ favor. Although the plaintiffs were ultimately unsuccessful in overturning Abood, given the split in the Court and other recent decisions by the Supreme Court which cast doubt on Abood’s continued viability, we can expect that this issue will be before the Court again in the future.

But for now, public unions can continue to charge non-members fees associated with the unions’ representation of public sector workers.