E-Notice

2016-CH-09212
CALENDAR: 07
To: CORPORATION COUNSEL
30 N LASALLE 900
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 12/15/2017 at 4:01 PM and was ACCEPTED with
the Clerk of the Circuit Court of Cook County on 12/15/2017 at 4:10 PM.

ANSWER/RESPONSE/REPLY (Plaintiff's Reply in Support of Their Motion for Summary Judgment

of Count III)
EXHIBITS (Exhibit A)

Filer's Email: matt@loevy.com

Filer's Fax: (312) 243-5902
Notice Date: 12/15/2017 4:10:21 PM
Total Pages: 9

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, )
)
Plaintiffs, )
) 16 CH 09212
v. )
) Judge Diane J. Larsen
CHICAGO CITY COUNCIL, )
)
Defendant. )

PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY

JUDGMENT ON COUNT III

Plaintiffs filed their Motion for Summary Judgment on Count III in January 2017. CITY

COUNCIL then spent nearly a year searching for new evidence that would support its position.

It did not find any. Instead, the additional witnesses CITY COUNCIL tracked down further

corroborated that not a single member of the public waiting in line without a preferential seat

reservation was able to attend the June 22, 2016 CITY COUNCIL meeting when the TIF

provision was discussed and voted on. As the Illinois Supreme Court stated, if a vote was not

taken publicly, no final action occurred. Therefore, finding CITY COUNCILs vote invalid is

mandatory.

I. ARGUMENT

A. Facts CITY COUNCIL Does Not Dispute In Its Response Brief

The following facts were raised in Plaintiffs Motion for Summary Judgment on Count

III and CITY COUNCIL does not dispute them:

At the time of the June 22 meeting, CITY COUNCIL had a longstanding practice
of giving preferential access to people by reserving seats for them. MSJ Count III
 Ex. D (Starks Dep. At 56:6-12, 58:2-5); MSJ Count III Ex. E (Brown Dep. at
28:21-23.

Members of the public were given not even secondary access, but tertiary access
to seats after those with reservations and their companions without reservations
got theirs. MSJ Count III Ex. E (Brown Dep. at 60:17-62:14).

This uncontroverted testimony from Defendants own employees demonstrates CITY

COUNCILs practice of facilitating preferential seat reservations in violation of OMA.

B. No Member Of The Public Waiting In Line Got Into The June 22 Meeting During
The First Two Hours

CITY COUNCIL states that the third floor gallery was open during the June 22 meeting,

but CITY COUNCIL does not state that it was open during the first two hours of the meeting

when the vote on the TIF provision was taken (the relevant time period for this motion). Def.
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Resp. at 3 (citing Johnson Aff. 4-5). Nor does CITY COUNCIL allege that members of the
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public waiting in line without preferential seat reservations ever got into the third floor gallery.

It remains undisputed that for at least the first two hours the meeting was in session, from 10:00

a.m. to 12:00 p.m., not a single member of the public waiting in line was allowed into the

meeting. MSJ Count III Ex. A (Garcia Aff. #3); 2nd Am. Compl. at 26; Ans. To 2nd Am.

Compl. at 26 (conceding that Defendant has insufficient information to deny this verified

allegation). This was further corroborated by the third party witness that CITY COUNCIL

tracked down who confirmed, in no uncertain terms, that she did not see a single member of the

public get into the meeting. 1 Def. Resp. Ex. 4 (White Dep. 45:3-6). The third party witness was

unable to enter the meeting herself even though she was given the special treatment of being

escorted past security to personally speak with an Alderman. Id. at 20:11-22:3. The Alderman

1
The other third party witness deposed by CITY COUNCIL also confirmed that a police officer
with crossed arms made it clear he could not enter the June 22 meeting. Def. Resp. Ex. 3 (Torres
Dep 41:2-19)
2
 himself confirmed that all seats were full and she later left without ever getting into the meeting.

Id.

CITY COUNCIL also states that GARCIA could have reserved a seat at the meeting.

Def. Resp. at 6. In support of this claim it relies on the fact that roughly three decades ago an

alderman that GARCIA knew and the Mayor told him that he could reserve seats. Def. Resp.

Ex. 2 (Garcia Dep. 33:7-34:9). The last time GARCIA reserved a seat was in 1993. Id. CITY

COUNCILs claim that members of the general public (especially those without inside

connections to politicians) could have reserved seats at the June meeting is a non-starter. It was

only in response to this litigation that on August 30, 2016, CITY COUNCIL for the first time

adopted a written policy regarding public seating. Ex. A. Prior to this litigation CITY
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COUNCIL never did anything to inform the general public that seats could be reserved.
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Throughout the entirety of this litigation CITY COUNCIL has come forward with no evidence to

the contrary. A secret process for seat reservations does not save CITY COUNCIL from the

consequences of its actions.

C. The Third Floor Gallery And Preferential Seating In Violation Of OMA

CITY COUNCIL states that GARCIA never attempted to enter the third floor gallery

through the elevator, as though the entrance used is relevant. Def. Resp. at 3, 5-6. GARCIA

attempted to gain entry to the third floor gallery, but that entry was denied. Def. Resp. Ex. 2

(Garcia Dep. 17:18-18:3). When GARCIA attempted to enter the third floor gallery using the

stairs a police officer explicitly told him that he could not go to the gallery. Id. It would have

been nonsensical (and possibly illegal) for GARCIA to attempt to evade the police officer by

sneaking in another entrance. Moreover, testimony from CITY COUNCILs own assistant

sergeant-at-arms (the man who made the decisions about seat reservations at the June 22

meeting) confirms that not a single seat on either the second or third floors was set aside for
3
 people without preferential seat reservations. MSJ Count III Ex. E (Brown Dep. 32:12-17 34:3-

7).

Even if CITY COUNCILs claim were true that members of the public waiting in line

were allowed into the third floor gallery, but not the second floor, that is clearly a violation of

OMA. Giving preferential admission to certain groups or people violates OMA and Defendants

cite no authority to the contrary. Gerwin v. Livingston Cty. Bd., 345 Ill. App. 3d 352, 358

(2003). The third floor gallery is not in the main CITY COUNCIL chambers and is entirely

sealed off from the chamber by a wall of glass. MSJ Count III Ex. D (Starks Dep. 24:15-25:18).

People sitting in the third floor gallery can only hear proceedings through speakers. Id. This

highlights the second-class nature of seating in the third floor gallery. As a result, even if it were
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true that members of the public waiting in line were able to enter the third floor gallery, the
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discriminatory seating practice of seating people in the third floor gallery, but not the second

floor chamber, would mean that the June 22 meeting was not entirely open as the law requires.

Id. at 358.

D. Webcasts Of The June 22 Meeting And Preferential Access In Violation Of OMA

CITY COUNCIL argues that the ability to watch videos or webcasts of a meeting counts

as attending it. Def. Resp. at 2, 6, 8. As the Gerwin court stated, [u]nless a statute specially

defines a word, we give the word its plain and ordinary meaning. Gerwin 345 Ill. App. 3d at

361. Attend means to be present at. Merriam-Webster, available at https://www.merriam-

webster.com/dictionary/attend. That does not include watching on the internet, and does nothing

for people without internet access. Nothing in OMA allows the CITY COUNCIL to provide

preferential reserved seating for people it deems important and then tell the peasants that they

only get to watch the meeting on the internet. Such a preferential admissions practice violates

OMA. Gerwin 345 Ill. App. 3d at 358.

4
 E. The Law Is Clear And CITY COUNCIL Cites Nothing To The Contrary

CITY COUNCIL fails to engage with the statutory language at issue here, fails to engage

with all of the cases Plaintiffs cited, and fails to cite any case law or statutory authority

supporting its position at all. Instead, CITY COUNCIL merely works to distinguish one of the

cases Plaintiffs cited, Gerwin v. Livingston County Bd. 345 Ill. App. 3d 352 (4th Dist. 2003).

CITY COUNCIL states that Gerwin only dealt with the convenience requirement of open

meetings, which as CITY COUNCIL puts it is only one of many requirements for an open

meeting. Def. Resp. at 4. Plaintiffs agree that the convenience requirement is only one of many

requirements for a valid open meeting under OMA. All this means is that there are many other

requirements under OMA that CITY COUNCIL had to satisfy to avoid violating the statute.
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Gerwin directly addressed what constitutes an open meeting generally, as well as the
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convenience requirement specifically. It defined open for OMA purposes: Open means not

restricted to a particular group or category of participants. Gerwin, 345 Ill. App. 3d at 358

(citing Merriam-Websters Collegiate Dictionary 811 (10th ed. 2000)). The Appellate Court

went further and rejected the claim that all OMA requires is that meetings are not conducted in

secret. Id. at 359. Nor may meetings only be open in a technical sense. Id. The Appellate

Court clarified that OMA has a broad requirement of openness. Id. at 359.

The court in In re Foxfield Subdivision briefly addressed open meeting requirements as

well, citing Gerwin. 396 Ill. App. 3d 989, 998 (2009). There the court held that the meeting was

properly open because the plaintiffs did not argue that the meeting was inaccessible. Id. Rather,

the plaintiffs acknowledged that the public was allowed into the meeting, they were just upset

that the meeting ran late. Id. If members of the public had been barred from attending the

meeting, like in this case, then the court would have held that the meeting was improperly

closed. Id.
5
 Here, GARCIA experienced far more than the mere difficulty gaining admittance

contemplated in Gerwin and CITY COUNCIL had much more than one weeks notice that more

than zero people would want to attend the June 22 meeting. 2 Id. at 362. Either of these points

alone is sufficient to find that Defendant did not hold truly open meetings as OMA requires.

Contrary to CITY COUNCILs assertion, Plaintiffs do not, and have never argued that CITY

COUNCIL should have rented out a football stadium to accommodate those wishing to attend

the June meeting. Def. Resp. at 7. Rather, out of the hundreds of seats CITY COUNCIL has in

its chambers, it was required to make seats available to the public on an equal basis without

preferential seat treatment. Instead, it chose to make literally zero of those seats available in

blatant violation of OMA.

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F. Final Actions Taken When Not A Single Member Of The Public Without A Seat
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Reservation Was Allowed Into The June 22 Meeting Should Be Declared Null And
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Void

In the Motion for Summary Judgment on Count III Plaintiffs cited OMA provisions and

cases supporting declaring votes at the June 22 meeting invalid. CITY COUNCIL did not

address any of this authority, nor did it cite any of its own. Instead, it merely states that the null

and void remedy is not warranted here. Def. Resp. at 7. The Illinois Supreme Court and First

District have held that votes not taken publicly are invalid.

In Lawrence v. Williams the court stated that where the purpose of [OMA] is

undermined by non-compliance with its provisions, a public bodys actions will not be upheld.

2013 IL App (1st) 130757, 21, 23. The public body in question failed to vote in a properly

open meeting as OMA requires. Id. As a result, the court ruled that the vote was null and

void, and that no final action was taken. Id.

2
It was not Plaintiffs, but CITY COUNCILs own witness who testified that almost every CITY
COUNCIL meeting has lines over 50 people long (and multiple meetings per year with lines
over 100 people long). MSJ Count III Ex. C (Kipka 22:10-23:7).
6
 In Howe v. Ret. Bd. of Firemen's Annuity & Ben. Fund of Chicago, the Appellate Court

vacated the public bodys vote because members of the public were not able to hear the vote take

place. Id. The Court further noted that even given that members of the public could view the

signatures on the decision, the vote was still in violation of OMA. Id. Two years later in 2015,

the First District again explicitly adhered to the reasoning in Howe. Baldermann v. Bd. of

Trustees of Police Pension Fund of Vill. of Chicago Ridge, 2015 IL App (1st) 140482, 33.

In Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Attorney Gen. of Illinois, the court did

not need decide whether to declare a vote null and void as the public recital requirement in

question had been met. 2017 IL 120343, 74. The Illinois Supreme Court explained its position

on the null and void remedy though. Id. The Court stated that without a public vote no final
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action has occurred. Id. In support of this statement the Illinois Supreme Court cited to
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Lawrence v. Williams and Howe v. Ret. Bd. of Firemen's Annuity & Ben. Fund of Chicago, both

of which invalidated public bodies decisions. Id. Therefore, where, as here, no public vote

occurred, finding CITY COUNCILs action invalid is mandatory.

II. CONCLUSION

For these reasons this Court should grant Plaintiffs Motion for Summary Judgment on

Count III and declare the vote on the TIF provision null and void.

7
 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
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Atty. No. 41295

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Alan Mills
UPTOWN PEOPLES LAW CENTER
4413 N. Sheridan Road
Chicago IL 60640
Alan@uplcchicago.org
Atty. No. 70272

CERTIFICATE OF SERVICE

I, Joshua Burday, an attorney, certify that on December 15, 2017, I served the foregoing

Plaintiffs Reply in Support of Their Motion for Summary Judgment on Count III via electronic

mail on all counsel of record.

/s/ Joshua Hart Burday

8
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CIRCUIT COURT OF
COOK COUNTY, ILLINOIS
CHANCERY DIVISION
Chicago City Council -Public Seating Policy CLERK DOROTHY BROWN

1. Definitions:

"Gallery" means the public seating areas of the City Council of the City of Chicago located
on the second and third floors of City Hall.

"Meeting" means a meeting of the City Council that is required to be open to the public
under the Open Meetings Act(5 ILCS 120/1 et seq.).

"Sergeant-at-Arms" means the Sergeant-at-Arms of the City Council.

2. General Admission:

The public is admitted to the Gallery's non-reserved seats on a first-come, first-served basis.
Fifteen seats on the second floor and fifteen seats on the third floor shall be set aside for
general admission and may not be reserved. The line for general admission forms outside
the second-floor Gallery and shall not be formed prior to one hour before the scheduled
starting time of a Meeting. The Sergeant-at-Arms reserves the right to seat visitors in the
second-floor or third-floor Gallery based on seat availability.

3. Reserved Seats:

How to Reserve Seats. An individual or group wishing to reserve Gallery seats can do
so by calling (312) 744-0406 or emailing Lamar.brown(a~citvofchicago.orq no more than two
weeks, and no less than 48 hours before a scheduled Meeting. Gallery seats are reserved
on a first-come, first-served basis. When reserving seats, you must provide to the Sergeant-
at-Arms: (i) the name of the individual or representative of the group requesting the
reservation, (ii) a description of the group, if applicable, (iii) the number of seats requested,
and (iv) email and telephone contact information. The Sergeant-at-Arms reserves the right
to limit group size, and to seat visitors in the second-floor or third-floor Gallery, based on
seat availability.

Release of reserved seats. The Sergeant-at-Arms will release reserved seats for
general admission when the reserving individuals) vacate their seats for the rest of the
Meeting, and may release reserved seats for general admission if the reserving individuals)
have not arrived within half an hour after the start of a Meeting and have not notified the
Sergeant-at-Arms that they have been delayed and are on their way.

,~ 3~ ,~ ~~
ate Sergeant- t-Arr~is

Exhibit A

C000439