E-Notice

2016-CH-09212
CALENDAR: 07
To: CORPORATION COUNSEL
30 N LASALLE 800
CHICAGO,, IL 60602

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
ANDREW THAYER vs. CHICAGO CITY COUNCIL
2016-CH-09212
The transmission was received on 08/16/2016 at 2:24 PM and was ACCEPTED with
the Clerk of the Circuit Court of Cook County on 08/16/2016 at 3:45 PM.
PRELIMINARY INJUNCTION(SET FOR MOTION HEARING) (Plaintiffs' Amended Motion for
Preliminary Injunction)
Filer's Email:
Filer's Fax:
Notice Date:
Total Pages:

matt@loevy.com
(312) 243-5902
8/16/2016 3:45:53 PM
6

DOROTHY BROWN
CLERK OF THE CIRCUIT COURT
COOK COUNTY
RICHARD J. DALEY CENTER, ROOM 1001
CHICAGO, IL 60602
(312) 603-5031
courtclerk@cookcountycourt.com

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CIRCUIT COURT OF
COOK COUNTY, ILLINOIS
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISION
CLERK DOROTHY BROWN
ANDREW THAYER,
RICK GARCIA,

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Plaintiffs,
v.
CHICAGO CITY COUNCIL,
Defendant.

16-CH-09212
Judge Diane J. Larsen

PLAINTIFFS AMENDED MOTION FOR PRELIMINARY INJUNCTION

In order to obtain a preliminary injunction in an Open Meetings Act case (OMA)
Plaintiffs need only show they have standing and it is likely that OMA was violated. Plaintiffs
have demonstrated that CITY COUNCIL committed multiple OMA violations by holding
improperly closed meetings and not allowing for public comment. For these reasons this Court
should issue a preliminary injunction requiring CITY COUNCIL to comply with OMA by
holding properly open meetings and providing an opportunity for people to address public
officials at those meetings.
I.

BACKGROUND

THAYER, along with seven others in his group, attempted to attend the CITY COUNCIL
meeting scheduled for 10:00 a.m. on May 18, 2016. Compl. at 8-9. The eight of them were
the very first people in line for the meeting. Id. at 10. They, along with all the other members
of the public waiting in line, were denied admittance to the meeting when it started. Id. at 1011. All members of the public waiting in line at the meeting were unable to see or hear the
meeting in any way. Id. at 12-13. About an hour after the meeting started THAYER and five

others were finally allowed into the CITY COUNCIL meeting. Id. at 14. Over 20 people who
were still there were still not allowed into the meeting. Id. at 15. The majority of the empty
seating in the meeting was marked reserved. Id. at 16. THAYER and the five others who
eventually made it into the meeting were directed to sit in reserved seats. Id. at 17-18. Even
though there were more empty seats available no additional members of the public were allowed
in. Id. at 19. Finally, there was no opportunity for public comment at the May 18, 2016 CITY
COUNCIL meeting. Id. at 20.
GARCIA along with another person, attempted to attend the June 22, 2016 CITY
COUNCIL meeting scheduled to start at 10:00 a.m. Id. at 21-22. There were approximately

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200 people waiting on the second floor to attend the meeting. Id. at 23. The very first people
in line for the meeting, along with all the other members of the public waiting in line, were
denied admittance to the meeting. Id. at 25-26, 30. They were unable to see or hear the
meeting in any way. Id. at 27. During the CITY COUNCIL meeting, police officers barred
access to the third floor gallery. Id. at 28. Furthermore, even when people left the council
chambers no members of the public waiting in line were allowed in. Id. at 29. Finally, there
was no opportunity for public comment at the June 22, 2016 CITY COUNCIL meeting. Id. at
31.
II.

LEGAL STANDARDS

Normally, a preliminary injunction is warranted if (1) a clearly ascertainable right

requires protection, (2) irreparable injury will result in the absence of an injunction, (3) no
adequate remedy at law is available, and (4) the moving party is likely to succeed on the merits
of the case. Roxana Cmty. Unit Sch. Dist. No. 1 v. WRB Ref., LP, 2012 IL App (4th) 120331,
23. However, an exception to this burden exists where injunctive relief is expressly authorized
by statute. Id. at 24. This exception applies where either (1) injunctive relief is provided for
2

public officials to use in enforcing the statute or to afford citizens a private right of action to
restrain public officials from violating a statute defining official duties or powers; or (2) even
an isolated violation of the statute is presumed to cause irreparable harm to the public. Id. at
24 (citation omitted). In these cases a plaintiff need only show that (1) the defendant has
violated the statute and (2) the plaintiff has standingthere is no necessity to prove irreparable
damage or the absence of an adequate remedy at law. Id. (citations omitted).
It is the explicit intent of the Open Meetings Act to ensure that the actions of public
bodies be taken openly and that their deliberations be conducted openly. 5 ILCS 120/1. OMA
also provides members of the public the right to address public officials. 5 ILCS 120/2.06(g).

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The Open Meetings Act expressly provides for injunctive relief where justified. WRB, 2012 IL
App (4th) 120331, 26. OMA Section 3(c) states: The court, having due regard for orderly
administration and the public interest, as well as for the interests of the parties, may grant such
relief as it deems appropriate, including granting an injunction against future violations of this
Act. 5 ILCS 120/3(c). The Illinois Appellate Court has held that the provision allowing
injunctions gives rise to a presumption that the violation of this statute causes a distinctly public
harm, and that the limited pleading requirements for injunctions apply in OMA cases. WRB,
2012 IL App (4th) 120331, 26.
III.

ARGUMENT

Plaintiffs need only show a likelihood that CITY COUNCIL violated the Open Meetings
Act in order to obtain a preliminary injunction. WRB, 2012 IL App (4th) 120331, 24-26.
Here, CITY COUNCIL violated Plaintiffs clearly established rights under OMA in two ways.
First, CITY COUNCIL held closed meetings where members of the public, including Plaintiffs,
were not allowed in. Compl. at 10-11, 19, 25-26, 29-30. OMAs plain language requires
public bodies to meet publicly unless one of the few exceptions (subject to narrow construction)
3

applies. Illinois News Broadcasters Ass'n v. City of Springfield, 22 Ill. App. 3d 226, 228 (1974).
OMA Section 2(a) states: Openness required. All meetings of public bodies shall be open to the
public unless excepted in subsection (c) and closed in accordance with Section 2a. 5 ILCS
120/2(a).

OMA also clarifies that the provisions for exceptions to the open meeting

requirements shall be strictly construed against closed meetings. 5 ILCS 120/1.

CITY COUNCIL may not reserve seats and keep members of the public out of a meeting
when seats are available. Section 2.01 states that [a]ll meetings required by this Act to be
public shall be held at specified times and places which are convenient and open to the public.
5 ILCS 120/2.01. The use of the word convenient implies a rule of reasonableness, not

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absolute accessibility but reasonable accessibility. Gerwin v. Livingston Cty. Bd., 345 Ill.
App. 3d 352, 362 (2003). While Gerwin does not require public bodies to accommodate all
members of the public wishing to attend a meeting, not allowing in members of the public when
there are available empty seats clearly violates OMA Section 2.01. Id. In this case no exception
applies to the requirement that public bodies hold open meetings and CITY COUNCILs
meetings must be open to the public. There is no basis in OMA or caselaw for reserved
seating, let alone reserved seating that goes unused while the huddled masses are left in line.
Second, CITY COUNCIL provided no opportunity for public comment at these meetings.
Compl. at 20, 31. Section 2.06(g) 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). As far as Plaintiffs are aware, Environmental Protection Agency is the only Illinois
case which directly addresses Section 2.06(g). Roxana Cmty. Unit Sch. Dist. No. 1 v. Envtl.
Prot. Agency, 2013 IL App (4th) 120825, 57-58. The Illinois Appellate Court described
defendants failure to provide an opportunity to address public officials at a public meeting as

both a violation of the explicit language of 2.06(g) and a violation of OMAs overarching
purpose. Id. at 58. CITY COUNCIL appears to have no rules established for providing an
opportunity to address public officials at CITY COUNCIL meetings and does not provide such
an opportunity. This is a blatant violation of the both the explicit language of Section 2.06(g)
and OMAs overarching purpose. As a result, this Court should issue a preliminary injunction
against CITY COUNCIL.
IV.

CONCLUSION

For these reasons this Court should issue a preliminary injunction requiring CITY
COUNCIL to comply with OMA by holding properly open meetings and providing an

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opportunity for people to address public officials.

RESPECTFULLY SUBMITTED,
Joshua Hart Burday
________________________________
Attorneys for Plaintiffs
ANDREW THAYER
RICK GARCIA

Matthew Topic
Joshua Burday
LOEVY & LOEVY
311 North Aberdeen, 3rd floor
Chicago, IL 60607
(312) 243-5900
matt@loevy.com
joshb@loevy.com
Atty. No. 41295
Alan Mills
UPTOWN PEOPLES LAW CENTER
4413 N. Sheridan Road
5

Chicago IL 60640
Alan@uplcchicago.org
Atty. No. 70272

CERTIFICATE OF SERVICE
I, Joshua Burday, an attorney, certify that on August 16, 2016, I caused the foregoing
Plaintiffs Amended Motion for Preliminary Injunction to be served via electronic mail on all
counsel of record.

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/s/ Joshua Burday