STATE OF ILLINOIS, COUNTY OF DUPAGE

IN TI{E CIRCUIT COURT OF THE EIGHTEENTI{ JUDICIAL DISTRICT

ERICA MILITELLO, )
Plaintiff, )
)
V )
)
BOARD OF EDUCATION ) Case No. 2021 CI-[403
SCFIOOL DISTRICT 45 VILLA )
PARK, )
Defendant )
)

ORDEII

TI-IIS CAUSE COMING ON for the court's ruling afler legal argument on cross Motions
lor Summary Judgment. The court has considered Defendant's Motion for Summary Judgment,
Plaintifls I{esponse in Opposition to Defendant's Motion for Summary Judgment, Defendant's
Reply in Support of its Motion for Summary Judgment, Plaintiff s Motion for Summary Judgment,
Defendant's Response to Plaintiffls Motion for Summary Judgment, Plaintiff s Reply in Support
of Motion for Summary Judgment, Defendant's Motion to Strike Part of Plaintiff s Reply in
Support of I-Ier Motion for Summary Judgment, or alternatively for Leave to File Sur-Reply, and
Plaintiffls Response to District 45's Motion to Strike, the arguments of counsel, applicable case
and statutory law, and the relevant portions of the Open Meetings Act.

THE COUITT FINDS AS FOLLOWS:

Defendant's Motion for Summary Judgment ("Defendant's MSJ") argues that the Open
Meetings Act (Act) requires an opportunity for people to address the Board of Education of School
District 45, Villa Park (the "District" or "Board") under reasonable rules, and the District complied
with the Act as the District's deadlines as well as the handling of written comments and live public
comment allowed reasonable opportunities to address the Board. In Plaintiffs Motion for
Summary Judgment ("Plaintiffs MSJ"), she argues that the District's handling of written
comments violated the Act when the Board did not read the written comments verbatim; the 1:00
p.m. deadline for live Zoom comment was improper; and declaratory relief, injunctive relief, and
a fee award are appropriate.

Summary judgment is proper where the pleadings, depositions, admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material hct and that the
moving party is entitled to judgment as amatter of law. 735 ILCS 512-1005(c). "Because summary
judgment is a drastic measure, it should only be allowed when the right of the moving party is
clear and free from doubt." Mydlach v. DaimlerChrysler Corp.,226Ill.2d30l,3I1 (2007). "The
purpose of a summary judgment proceeding is not to try an issue of fact, but rather to determine
whether one exists.- Id. "If the undisputed material facts could lead reasonable observers to
divergent inferences, or where there is a dispute as to a material fact, summary judgment should
be denied and the issue decided by the trier of fact." Forsythe v. Clark USA, lnc.,224I11.2d274,
280 (2007). When parties file cross-motions for summary judgment, they agree that only a question
of law is involved and invite the court to decide the issues based on the record. Llowever, the mere
filing of cross-motions for summary judgment does not establish that there is no issue of material
fact, nor does it obligate a court to render summary judgment. Pielet v. Pielet,2012IL 112064,11
28 (il1. 2012).

The underlying one-count complaint for injunctive and declaratory relief is based on the
District's alleged violations of the Act. Plaintiff has requested the following remedies: (1) an
injunction barring the Board from violating the Act and requiring the Board to conform to the letter
and spirit of the Act by striking the deadline and requiring verbatim memorialization of the full
written comments as submitted by members of the public; (2) a declaration that the Defendant has
violated the Act; (3) reasonable attorney's fees and costs as allowed for by the Act; and (4) any
other relief the Court deems just and necessary.

Plaintiff asserts that the court has the authority to grant declaratory relief pursuant to 735
ILCS $5/2-701 because an actual controversy exists between the parlies and the requested relief
will fully resolve that controversy. "The essential requirements of a declaratory judgment action
are: (1) a plaintiff with a legal tangible interest; (2) a defendant having an opposing interest; and
(3) an actual controversy between the parties concerning such interests." Beahringer v. Page,204
IlL 2d 363, 372 (2003). There clearly are no issues of material fact that there is an actual
controversy between the parties and the parties have opposing interests in said controversy.

Pursuant to the Act, "it is the public policy of this State that public bodies exist to aid in
the conduct of the people's business and that the people have a right to be informed as to the
conduct of their business." 5 ILCS l20ll. "Any person shall be permitted an opportunity to address
public officials under the rules established and recorded by the public body." 5 ILCS 12012.06(9).
Any person may bring a civil action alleging noncompliance with the Act. 5 ILCS 12013(a). The
court may grant such relief as it deems appropriate. 5 ILCS I2013(c). The court may assess against
a party reasonable attorney's fees incurred by the other party who substantially prevails in an
action. 5 ILCS 12013(d).

The Attorney General ("AG") may issue advisory opinions to public bodies regarding
compliance with the Act. 5 ILCS 120/3.5(h). "An opinion of the AG, while not binding on the
courts, is to be given considerable weight especially on matters of first impression." Freedom Oil
Co. v. Illinois Pollution Control Bd.,215Ill. App. 3d 508, 515 (4th Dist. 1995). See also Allen v.
Clark County Park Dist. Bd. Of Com'rs,2016IL App (4th) 150963,n29.

l:00 PM Deodl.in,e
Plaintiff alleges that Defendant's actions violated the Act during public meetings of the
Board in August and September of 2021. Members of the public who wished to address the Board
live via Zoom at the scheduled 6:30 p.m. meeting were advised to email the District before 1:00
p.m. on the date of the meeting. Alternatively, members of the public were given the option of

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submitting written comments to be "announced" during the meeting, and submissions were to be
made by the same 1:00 p.m. deadline.

There is no genuine issue of material fact regarding the deadline to request aZoom link or
submit public comment. Both parties agree that the 1:00 p.m. deadline was in place for the
meetings at issue. The issue is whether this deadline violated the Act. Plaintiff bears the burden of
proving a violation of the Open Meetings Act. In re Foxfield Subdivision, 396 Ill. App. 3d 989,
992 (2d Dist. 2009).

Defendant maintains that requiring aZOOM link to make live comments during the remote
meeting was an appropriate security measure and the deadlines were reasonable determinations of
procedural matters authorized by Board Policy 2:230. Such deadlines, defendant asserts, were not
arbitrary but rather based on considerations of "staffing and operational needs" as detailed in
several affidavits submitted in support of their MSJ.I Exhibits were also provided to Defendant's
MSJ detailing the activities performed in preparation for the meeting such as responding to
requests for a zoom link, providing instructions for joining the remote hearing, preparing lists of
those who requested azoom link for purposes of use during the meeting itself, and compiling the
submitted public comments and delivering those to the Board. Additionally, both notice of the
meeting as well as the agenda for the meeting and options for public comment were provided days
before the at issue deadline.

The court finds the Illinois Attorney General PAC Request for Review Letter dated May
29,2020 (2020PAC 6270I) to be persuasive. In this opinion, a2:00 p.m. deadline for submitting
public comments before a7:00 p.m. meeting, without evidence that any individual was prohibited
from exercising his or her statutory right to address the Board during a public meeting, was found
not to be a violation of the Act. In this case, there is no evidence that any individuals were
prohibited from addressing the Board because of the 1:00 pm deadline. Furthermore, PAC
guidance supports the idea of requiring individuals to request a ZOOM link in order to attend
meetings remotely in an effort to prevent possible electronic hijacking of remote meetings.
Consequently, requirin g a ZOOM link in advance was a reasonable security measure. The court
finds the 1:00 pm deadline was not arbitrary but rather based on the needs to prepare for public
comment and coordinating the remote hearing and therefore does not represent a violation of the
Act. While public bodies may use reasonable time, place, and manner regulations, they must be
necessary to further a governmental interest. In this case, the court finds the District's 1:00 pm
deadline reasonable and necessary to fuither a governmental interest.

Comments Not Read Verbatim

Plaintiff asserts that membels of the public submittcd writtcn commcnts as instructed to
the Roard, but no wrilten comment was read aloud during the meetings nor was a verbatim copy
of the comments affixed to the meeting minutes. Instead, during the meeting, the written comments

I Plaintiff argues that the affidavits of Anthony Palmisano (Ex. D to Defendant's MSJ) and Lisa Grippo (Ex. C to
Defendant's MSJ) should be strickcn as they are not based on personal knowledge but rathcr akin to statements
made on information and belief. 'I'he court disagrees. Thc court finds both affidavits propcr and not unsupported
factual assertions. Therefore, the request to strike both is denied.
a
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were briefly "summarized" by reading the commenter's first name, their last name or initial, and
a topic description of their comment. Defendant asserts that there is no requirement under the Act
to read comments into the meeting record or affix them to the meeting minutes. Moreover,
Defendant asserts the decision to summarize the written comments was based on several
considerations, including the possibilities of needing excessive time to read all the comments
verbatim, fostering a perception of the Board endorsing certain comments, and forcing a Board
member or District employee to repeat profanity or other objectionable content.

There is no genuine issue of material fact regarding the lack of a verbatim recitation of
written public comments. Both parties agree that the written comments were not read aloud, nor
were they attached to the meeting minutes. The issue is whether the failure to read written public
comments verbatim or to attach the comments to the meeting minutes violated the Act. Plaintiff
bears the burden of proving a violation of the Open Meetings Act. In re ltoxfield Subdivision,396
Ill. App. 3d 989, 992 (2d Dist. 2009).
Under section 2.06(9), "[a]ny person shall be permitted an opporlunity to address public
officials under the rules established and recorded by the public body." The Board's Policy 2:230
Public Participation at Board of Education Meetings and Petitions to the Board provided that
"[flor an overall minimum of 30 minutes during each regular and special open meeting, any person
may comment to or ask questions of the Board (public participation) subject to the reasonable
constraints established and recorded in this policy's guidelines." According to the Public Access
Counselor's ("PAC") Guidance to Public Bodies on the Open Meetings Act and Freedom of
Information Act during the COVID-L9 Pandemic updated July 2,2020, "public bodies should
consider taking public comment by email or written submission and reading those public
comments into the record of the public meeting." PAC Guidance p.6. The PAC further noted that
the "OMA requires public bodies to allow for public comment." Id.

The public has a statutory right to address the Board, subject only to reasonable limitations
necessary to further a significant governmental interest. "Although the [Act] does not specifically
address the types of rules that a public body may adopt, public bodies may generally promulgate
reasonable time, place, and manner regulations that are necessary to further a significant
governmental interest." 2014 PAC 30194, p.5. The Board has not demonstrated how reading the
name and the topic of the comment, rather than the full comments into the record, is reasonably
calculated to fuilher a significant governmental interest. The District indicated the changes for
handling submitted written comments were made after the August 3,2021meeting. I-Iowever, the
record indicates the August 3rd meeting and the altercation which took place was a result of live
public comments not wrilten comments. Additionally, the Board has existing rules regarding time
limitations that could address the concerns regarding the need for excessive time. fhe court notes
that none of the written comments were unreasonahly long, and the brief summary or topic
description did not adequately inform the public of the substance of the comment. Concern over
the perception that the Board is endorsing a comment solely by reading the comment aloud during
the public comment portion of the meeting is illogical and does not justify a refusal to read the
comment, especially after attributing it to the author. If that was a legitimate concern, the PAC
would not endorse and encourage the reading of written comments. Finally, the submitted

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comments in question did not contain any profanity or objectionable content. The failure to read
the comments as written are not a reasonable regulation to further a significant government
interest. It is important to note that public comments were treated differently based on whether
the Board was addressed live on Zoom or through written comment. Individuals who addressed
the Board live during Zoom had the opportunity to provide their full comment, and the public had
the opportunity to hear the full comment. Such was not the case with written comments - which
were only submitted privately to the Board and had no public component.

The court finds the defendant violated the Act by failing to publish the written comments
in full, either by reading them verbatim during the board meeting, or by publishing the verbatim
comments with the meeting minutes.

Strict Scrutiny

Plaintiff maintains that the deadline and the treatment of written comments are content-
based restrictions such that strict scrutiny applies, in that the restrictions must serve a compelling
state interest and be narrowly drawn to achieve that purpose. Defendant asserts that the deadline
is not a content-based restriction and therefore is not subject to strict scrutiny, but even so, the
deadline still passes strict scrutiny. Any content-based exclusion of speech in designated public
forums such as an open school board meeting is subject to strict scrutiny, meaning that the
government must show the exclusion is necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end. Surita v. Ifyde, 665 F.3d 860, 870 (7th Cir. 2011).
Government may enforce reasonable time, place, and manner restrictions provided they are content
neutral, they are narrowly tailored to serve a significant government interest, and ample alternative
channels of communication exist. Id. The parties agree that the deadline was not a content-based
restriction, so therefore, strict scrutiny does not apply. The court finds that the Board's treatment
of written comments was not a content-based restriction. The written comments were based on a
variety of viewpoints, and all of the comments were compiled and assigned a topic heading. The
process was not limited to specific comments promoting a particular viewpoint. There was no
disparate treatment of the written comments based on content, because all the written comments,
regardless of viewpoint, were "summarized." 'lherefore, strict scrutiny does not apply to the
treatment of the written comments.

Remedies - Declarutory Relief, Injunctive Relief, and Attorney's Fees

Injunctive Relief

Plaintiff seeks an injunction barring the Board from violating the Act and requiring the
Board to conform to the letter and spirit of the Act by striking the deadline for submission of
written comments/request for virtual access and requiring the verbatim memorialization of the full
written comments as submitted by members of the public. Defendant denies that injunctive relief
is appropriate in this case. "To be entitled to a permanent injunction, a parly must demonstrate (1)
a clear and ascertainable right in need of protection, (2) that he or she will suffer irueparable harm
if the injunction is not granted, and (3) that no adequate remedy atlaw exists." Vaughn v. City of
Carbondale,20T6IL 119181,1144. I-Iowever, if a statute (1) prescribes public offtcials' duties and
powers and (2) expressly provides for injunctive relief as a means to afford citizens a private right

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of action to restrain public officials from violating the statute, the inadequate remedy at law and
irreparable harm requirements do not have to be established. Postma v. Jack llrown Buick, Inc.,
157 Ill. 2d391,400 (1993). It is Plaintiff s asserlion that the Act fits this exception, and Plaintiff
is only required to demonstrate that a clear and ascertainable right is in need of protection.
Although section 3(c) of the Act permits the court to grant an injunction against future violations
of the Act, if the court deems it appropriate, the relief in section 3(c) is in regard to violations as a
result of a closed meeting. The relief specified in section 3(c) is not in relation to the violation
alleged in this case, and as such, the relaxed standard is inapplicable. Plaintiff is required to prove
all elements of a permanent injunction in order to be entitled to such relief and has failed to do so
in this case. Specifically, plaintiff has failed to establish that irreparable injury would result
without the injunction. Moreover, the intent of the legislature in drafting the Act was to allow
public bodies to form their own rules and regulations regarding public comment as demonstrated
by section 2.06(9). An injunction striking the deadline and requiring the verbatim memorialization
of written public comments ignores the public body's ability to establish its own rules and
regulations regarding opportunities for members of the public to address the Board. Plaintiff s
request for injunctive relief is denied.

Declaratory Relief

For the aforementioned reasoning, the court finds that the failure to read written comments
in their entirety or affix full comments to the meeting minutes violated the Open Meetings Act.
The deadline for requesting a Zoom link or to submit a written comment was not a violation.
Plaintiff s Motion for Summary Judgment is granted in parl and denied in part and Defendant's
Motion for Summary Judgment is denied in part and granted in part. Plaintiffs request for
injunctive relief is denied.

Attorney's Fees

The court reserves ruling on the issue of attorney's fees. The parties are ordered to brief,
in no more than three (3) pages, the issue of whether Plaintiff has substantially prevailed in her
action within the meaning of the Act such that granting reasonable attorney's lees is appropriate.
Briefs are to be filed by end of day on November 4,2022.

ENTERED:

Date: October I1,2022

Judge Anne T. Hayes