IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION MEGAN FOX, KEVIN DUJAN, Plaintiffs, v. ORLAND PARK POLICE DEPARTMENT, VILLAGE OF ORLAND PARK, ORLAND PARK PUBLIC LIBRARY, Defendants.

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2014 CH 12568 Hon. Neil H. Cohen

PLAINTIFFS’ RESPONSE TO DEFENDANT ORLAND PARK PUBLIC LIBRARY’S MOTION TO DISMISS Due to ORLAND PARK PUBLIC LIBRARY’s production of records and changes in policy taken in response to this lawsuit, the issues presently before the Court are now limited to whether a public body may prohibit a person from addressing a public body during a public meeting using private remote means such as FaceTime or Skype. Because the plain text and purpose of the Open Meetings Act allows no such prohibition, ORLAND PARK PUBLIC LIBRARY’s motion to dismiss should be denied. I.

UPDATED STATUS OF THIS LITIGATION

The following matters have been resolved either by agreement of the parties or by ORLAND PARK PUBLIC LIBRARY’S change of policies or production of records in response to the filing of this lawsuit: 1. Plaintiffs have agreed, following the Court’s ruling on Defendants’ motions to dismiss, (a) to file an unopposed motion to consolidate 2014 CH 16371 against ORLAND PARK PUBLIC LIBRARY with this case to be heard by this Court, with each case to keep its own individual case number, (b) to file an amended complaint against VILLAGE OF ORLAND PARK under this case number that is

limited to claims against VILLAGE OF ORLAND PARK, and (c) to file an amended complaint against ORLAND PARK PUBLIC LIBRARY under 2014 CH 16371 that is limited to claims against ORLAND PARK PUBLIC LIBRARY. On that basis, Defendants have agreed to withdraw their misjoinder arguments. 2. In response to this suit, ORLAND PARK PUBLIC LIBRARY has produced records showing the BCC fields of emails requested by FOX. FOX will seek attorney fees, costs, and civil penalties after all other issues in the case have been resolved. 3. In response to this suit, ORLAND PARK PUBLIC LIBRARY passed an amended public comment policy. DUJAN does not challenge the revised policy except for its failure to allow the public to address the library board by remote means. DUJAN will seek attorney fees and costs after the other issues in the case have been resolved. 4. In response to this suit, ORLAND PARK PUBLIC LIBRARY has agreed to produce attorney billing records with reduced redactions. FOX will seek attorney fees, costs, and civil penalties after the other issues in the case have been resolved. (This alleged violation was not the subject of ORLAND PARK PUBLIC LIBRARY’s motion to dismiss.) ORLAND PARK PUBLIC LIBRARY has not moved to dismiss the claims against it based on FOX’s FOIA request for browser histories (Amended Complaint ¶¶ 44-52) or its treatment of FOX and DUJAN as “recurrent requesters” (Amended Complaint ¶¶ 59-63). Those claims have not been resolved, leaving them for resolution later in this litigation. Therefore, the only issue currently before the Court is ORLAND PARK PUBLIC LIBRARY’s policy prohibiting the public from addressing the library board by remote means, which DUJAN contends to violate the Open Meetings Act. II.

THE OPEN MEETINGS ACT DOES NOT PROHIBIT THE PUBLIC FROM ADDRESSING PUBLIC BODIES BY REMOTE MEANS A.

The Plain Text of OMA Places No Restriction On The Means of Public Address

As ORLAND PARK PUBLIC LIBRARY correctly notes, the “most reliable indicator of legislative intent is the language of the statute, which must be given its plain and ordinary meaning.” OPPL MTD at 6. After reciting this fundamental canon of statutory construction, -­‐  2 -­‐    

ORLAND PARK PUBLIC LIBRARY immediately proceeds to violate it, jumping over the plain text of the statute into what it claims to be the statutory purpose of the Open Meetings Act. Id. at 6-7. The relevant text of the Open Meetings Act states: “Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” 5 ILCS 120/2.06(g). This text supports the public’s right to address the public body by remote means for multiple reasons. First, the “plain and ordinary meaning” of the term “address” imposes no restrictions on the means of address and does not require physical attendance. To the contrary, “address,” in relevant usage, is defined as “to direct a speech or written statement to (‘to address an assembly’).”

“Address,”

dictionary.com,

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11,

available

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http://dictionary.reference.com/browse/address?s=t, attached as Exhibit A. Directing comments to a public body through remote means such as FaceTime or Skype qualifies as “direct[ing] a speech” to a public body, and therefore qualifies as “address” that must be allowed under OMA. Second, the General Assembly placed no limitations in Section 2.06(g) requiring the public to address a public body only when physically present at a meeting. Yet the General Assembly placed exactly such a restriction on meeting attendance by the members of the public body except in certain limited circumstances. 5 ILCS 120/2.01 (“A quorum of members of a public body must be physically present at the location of an open meeting.”); 5 ILCS 120/7(a) (“If a quorum of the members of the public body is physically present as required by Section 2.01, a majority of the public body may allow a member of that body to attend the meeting by other means if the member is prevented from physically attending because of: (i) personal illness or disability; (ii) employment purposes or the business of the public body; or (iii) a family or other emergency. ‘Other means’ is by video or audio conference.”). Thus, reading the statute as

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a whole demonstrates that the General Assembly did not intend, and certainly did not expressly state, that physical attendance is required of someone who wishes to address a public body, even though it placed such restrictions on members of the public body itself. See Hubble v. Bi-State Devel. Agency, 238 Ill.2d 262, 268 (2010). Finally, the operative statutory text states that “any person” must be allowed to address the public body. 5 ILCS 120/2.06(g). The statute does not limit “person” to a resident of the public body or its geographic area or even to residents of the state of Illinois. Under the Statute on Statutes, “person . . . may extend and be applied to bodies politic corporate as well as individuals,” and similarly imposes no geographic restriction. 5 ILCS 70/1.05. Nor does OMA require that the person who wishes to address the public body have the physical health or monetary wherewithal to attend a meeting physically, instead granting the right of address to “any person.” Therefore, to “give effect to the intention of the legislature” and to comply with the “plain and ordinary meaning” of the phrase “any person,” the public must be afforded the right to address a public body through remote means. B.

Addressing A Public Body Through Remote Means Is Consistent With The Purpose Of The Open Meetings Act

The OMA preamble states that “it is the intent of this Act to protect the citizen’s right to know” and “the provisions for exceptions to the open meeting requirements shall be strictly construed against closed meetings.” 5 ILCS 120/1. These statutory purposes are served by an interpretation of the statute that allows for greater public attendance and address, not less. Under ORLAND PARK PUBLIC LIBRARY’s construction, the “right to know” would not exist for those who are physically unable to attend a meeting in person or who live far from the place of the meeting and lack the financial ability to travel. For those people, there would be no “right to know” and the meeting would be effectively closed with no ability for those views to -­‐  4 -­‐    

be made part of the public comment that is critical to functioning of public bodies under the Open Meetings Act. For these reasons, the statutory purpose requires expansive, not restrictive, public address provisions. C.

ORLAND PARK PUBLIC LIBRARY’s Rules Are Entitled To No Deference, And In Any Event, Are Arbitrary And Capricious

ORLAND PARK PUBLIC LIBRARY contends that its rules are subject to deference and will not be set aside unless arbitrary and capricious. OPPL MTD at 9-10. ORLAND PARK PUBLIC LIBRARY’s contention is legally wrong, and even if a deferential standard applied, the rules plainly conflict with the text of the statute, would exceed the scope of any rulemaking authority, and are arbitrary and capricious. None of the cases cited by ORLAND PARK PULIC LIBRARY stand for the proposition that rules promulgated by a unit of local government are reviewed under the Administrative Procedures Act or otherwise subject to any judicial deference. OPPL MTD at 9-10. Rather, each of the cases involved rules of a state agency. The text of the Administrative Procedures Act defines “agency” as limited to agencies of the State, not local, government. 5 ILCS 100/1-20. To the extent ORLAND PARK PUBLIC LIBRARY contends that review is limited to a deferential review under the Administrative Review Law, that statute is limited to “any decision, order or determination of any administrative agency rendered in a particular case,” not to the legality of general rules promulgated by a unit of local government. 735 ILCS 5/3-101, 101. Thus, ORLAND PARK PUBLIC LIBRARY’s deference argument lacks supporting legal authority. In addition, as discussed above, ORLAND PARK PUBLIC LIBRARY’s public comment policy does not allow “any person” to “address” the library board. As such, the policy conflicts with the text of the relevant statute and is therefore in violation of the Open Meetings Act, even -­‐  5 -­‐    

if the policy was subject to any deference. See Hadley v. Illinois Dep't of Corr., 224 Ill. 2d 365, 377 (2007) (“An agency cannot, through its rulemaking, limit the scope of the statute.”). Finally, even if ORLAND PARK PUBLIC LIBRARY was entitled to deference and its policy did not conflict with the plain text of the OMA, it would nonetheless be arbitrary and capricious. An administrative decision subject to deference may be overturned, among other reasons, if the decision “fails to consider an issue or offers an explanation for its decision that runs counter to the evidence or is so implausible that it could not be the result of agency expertise.” Sanchez v. Ryan, 315 Ill. App. 3d 1079, 1086 (2000). Contrary to ORLAND PARK PUBLIC LIBRARY’s contention, DUJAN does “reasonably argue that requiring speakers to actually attend public meetings violates this standard.” OPPL MTD at 10. The only purported justification for a restriction on remote address offered by ORLAND PARK PUBLIC LIBRARY is a conclusory and speculative statement, supported by no evidence, that “citizens making the effort to actually attend a meeting may want to observe persons making public comment so that they can evaluate their demeanor and potential biases or personal interest.” Id. Yet this justification bears no relation to a rule that speakers physically attend a meeting, conflicts with the OMA provisions allowing members of a public body to attend remotely in specific circumstances, and conflicts with, for example, state law permitting courts to hold bond hearings in criminal cases through video conference, 725 ILCS 5/110-5.1(c). If video conference is good enough for public body members to address the public and for criminal defendants to address the court in setting the terms of bail, it is good enough for a public library board meeting. For these same reasons, using the Public Access Counselor’s “reasonable time, place and manner restriction” and “significant governmental interest” test yields the same result

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because the restriction is unreasonable and serves no governmental interest other than to restrict public comment, which is an illegitimate governmental interest under OMA. III.

CONCLUSION

For these reasons, ORLAND PARK PUBLIC LIBRARY’s motion to dismiss should be denied.

RESPECTFULLY SUBMITTED,

/s/ Matthew Topic Attorneys for Plaintiffs MEGAN FOX KEVIN DUJAN Matthew Topic LOEVY & LOEVY 312 North May St., Suite 100 Chicago, IL 60607 (312) 2435900 [email protected] Atty. No. 41295 January 6, 2015  

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