3rd Amended Complaint, Thayer & Garcia v. Chicago City Council

3303
(7/08/10) CCG N003

IN THE CIRCUIT CIVIL COURT OF COOK COUNTY, ILLINOIS
THAYER ANDREW
v.
CHICAGO CITY COUNCIL
ELECTRONICALLY FILED
11/9/2016 3:38 PM
2016-CH-09212
CALENDAR: 07
PAGE 1 of 1
CIRCUIT COURT OF
COOK COUNTY, ILLINOIS
CHANCERY DIVISION
CLERK DOROTHY BROWN
No.
NOTICE OF MOTION
To:
CORPORATION COUNSEL(CHICAGO CITY COUNCIL)

30 N LASALLE 900
CHICAGO,, IL 60602
On
November 18, 2016
may be heard, I shall appear before the Honorable
or as soon thereafter as counsel

9:30 a.m.
or any Judge sitting in that
Larsen, Diane J.
Richard J. Daley Center, 50 West Washington Street,
, at
Judge's stead, in the courtroom usually occupied by him/her, located at
Court Room 2405
, Illinois, and present

.
Plaintiffs' Motion for Leave to Amend Complaint

Name
Address
City/State/Zip
LOEVY & LOEVY

311 N ABERDEEN 3FL
CHICAGO, IL 60607
Pro Se 99500
Atty. No.
Attorney for
THAYER ANDREW
(312) 243-5900
Telephone
PROOF OF SERVICE BY DELIVERY

I,
the attorney
,
,
non-attorney certify that on the
day of
I served this notice by delivering a copy personally to each person to whom it is directed.
,
Date
Signature/Certification
PROOF OF SERVICE BY MAIL

I,
the attorney
non-attorney certify that I served this notice by mailing
at
a copy to
(address on envelope)
and depositing the same in the U. S. Mail at

(place of mailing)
at
on the
day of
, with proper postage prepaid.
Date
,
PROOF OF ELECTRONIC SERVICE

I,
telefax transmission (
at
non-attorney certify that on the

day of
, the attorney
via the Clerks Office E-filing system, or
by
,
, I served this notice electronically
pages) with consent of the recipient where permissible under Ill. Sup Ct. R.11, at fax no.
.
, from
(Place)
Date
NOTE: If more than one person is served by delivery or mail, additional proof of service may be made by attaching an additional sheet to this
Notice of Motion.
DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
ORIGINAL - COURT FILE
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2016-CH-09212
CALENDAR: 07
PAGE 1 of 2
CIRCUIT COURT OF
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISION
CLERK DOROTHY BROWN
ANDREW THAYER,
RICK GARCIA,
Plaintiffs,
v.
CHICAGO CITY COUNCIL,
Defendant.
)
)
)
)
)
)
)
)
)
)
16-CH-09212
Judge Diane J. Larsen
PLAINTIFFS MOTION FOR LEAVE TO AMEND COMPLAINT

Defendant raises issues with Plaintiffs 2nd Amended Complaint in its Motion to Dismiss
Counts V & VI. Plaintiffs disagree that there are any issues with the 2nd Amended Complaint as
the facts of this case are well established. In many instances the facts are undisputed and
Defendant has conceded them. In any event, in order to avoid dispute, Plaintiffs have amended
the Complaint. Therefore, Plaintiffs respectfully ask that the Court grant leave for Plaintiffs to
amend the Complaint, attached here as Exhibit 1.
RESPECTFULLY SUBMITTED,
/s/ 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
Chicago IL 60640
Alan@uplcchicago.org
Atty. No. 70272
11/9/2016 3:38 PM
2016-CH-09212
PAGE 2 of 2
CERTIFICATE OF SERVICE
I, Joshua Burday, an attorney, certify that on November 9, 2016, I caused the foregoing
Plaintiffs Motion for Leave to Amend Complaint to be served on all counsel of record via
electronic mail.
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2016-CH-09212
CALENDAR: 07
PAGE 1 of 13
CIRCUIT COURT OF
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISION
CLERK DOROTHY BROWN
ANDREW THAYER,
RICK GARCIA,
Plaintiffs,
v.
CHICAGO CITY COUNCIL,
Defendant.
)
)
)
)
)
)
)
)
)
)
16-CH-09212
Judge Diane J. Larsen
THIRD AMENDED COMPLAINT

NOW COME Plaintiffs, ANDREW THAYER and RICK GARCIA, by their undersigned
attorneys, LOEVY & LOEVY and UPTOWN PEOPLES LAW CENTER, and bring this Open
Meetings Act suit to force CHICAGO CITY COUNCIL to hold properly open meetings and
allow public comment. In support of their Complaint, Plaintiffs state as follows:
INTRODUCTION
1.
Pursuant to the public policy of the State of Illinois, public bodies exist to aid in
the conduct of the peoples business and the people have a right to be informed as to the conduct
of their business. Actions and deliberations of public bodies must be taken openly in order to
promote transparency and accountability at all levels of government. Such openness is crucial to
democracy. 5 ILCS 120/1.
2.
Under the Illinois Open Meetings Act, citizens shall be given advance notice of
and the right to attend all meetings at which any business of a public body is discussed or acted
upon in any way. Exceptions to the public's right to attend exist only in those limited
circumstances where the General Assembly has specifically determined that the public interest
Exhibit 1
would be clearly endangered or that the personal privacy or guaranteed rights of individuals
would be clearly in danger of unwarranted invasion. 5 ILCS 120/1.
3.
Under the Illinois Open Meetings Act, members of the public have a right to
speak and be heard. Any person shall be permitted an opportunity to address public officials. 5
ILCS 120/2.06(g).
4.
The General Assembly has declared that it is the citizens right to know and the
provisions for exceptions of the open meeting requirements shall be strictly construed against
closed meetings. 5 ILCS 120/1.
PARTIES
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5.
Plaintiff ANDREW THAYER (THAYER) is an individual who resides in Cook
County, Illinois.
6.
Plaintiff RICK GARCIA (GARCIA) is an individual who resides in Cook
County, Illinois.
7.
Defendant CHICAGO CITY COUNCIL (CITY COUNCIL) is a public body
located in Cook County, Illinois.

ATTEMPTS TO ATTEND CITY COUNCIL MEETINGS AND CITY COUNCILS OMA
VIOLATIONS
8.
On May 18, 2016, THAYER attempted to attend the CITY COUNCIL meeting
scheduled for 10:00 a.m.

9.
THAYER, along with about seven others, arrived in front of the CITY COUNCIL
chambers doors at 8:30 a.m on May 18, 2016.

10.
Though THAYER and those with him were the very first people in line for the
May 18, 2016 CITY COUNCIL meeting, they, along with other members of the public waiting
in line, were denied admittance when the CITY COUNCIL meeting started at 10:00 a.m.
-2-
11.
For the first hour that the May 18, 2016 CITY COUNCIL meeting was in session,
from 10:00 a.m. to 11:00 a.m., not a single member of the public waiting in line was allowed into
the CITY COUNCIL meeting.
12.
At the May 18, 2016 CITY COUNCIL meeting members of the public waiting in
line were not directed to another location where they could see or hear the CITY COUNCIL
meeting.
13.
From 10:00 a.m. to 11:00 a.m. on May 18, 2016, THAYER and the other
members of the public waiting in line were unable to see or hear the CITY COUNCIL meeting.
14.
At approximately 11:00 a.m. on May 18, 2016, THAYER along with five others
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2016-CH-09212
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waiting in line were finally allowed into the CITY COUNCIL meeting.
15.
At approximately 11:00 a.m. on May 18, 2016, more than 20 people waiting in
line were still left outside and unable to see or hear the CITY COUNCIL meeting.
16.
At approximately 11:00 a.m. on May 18, 2016, the majority of the empty seats in
the chambers were marked reserved.

17.
On May 18, 2016, the seats in the CITY COUNCIL meeting that were vacant had
signs indicating that they were reserved.

18.
THAYER and the five others finally allowed into the May 18, 2016 CITY
COUNCIL meeting were directed to sit in reserved seats.

19.
At the May 18, 2016 CITY COUNCIL meeting, even though there were
additional empty seats, more members of the public waiting in line were not allowed in.
20.
There was no opportunity for public comment at the May 18, 2016 CITY
COUNCIL meeting.
-3-
21.
On June 22, 2016, members of the public attempted to attend the CITY
COUNCIL meeting scheduled for 10:00 a.m.

22.
GARCIA, along with one other, arrived in front of the CITY COUNCIL
chambers doors between 8:30 a.m. and 8:45 a.m. on June 22, 2016.
23.
By 9:30 a.m., approximately 200 members of the public were waiting on the
second floor to attend the June 22, 2016 CITY COUNCIL meeting.
24.
On June 22, 2016, by 10:15 a.m., approximately 300 people were on the first
25.
The very first people in line for the June 22, 2016 CITY COUNCIL meeting,
floor.
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2016-CH-09212
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along with other members of the public waiting in line, were denied admittance when the CITY
COUNCIL meeting started at 10:00 a.m.
26.
For at least the first two hours the June 22, 2016 CITY COUNCIL 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 CITY COUNCIL meeting.
27.
From 10:00 a.m. to 12:00 p.m. on June 22, 2016, members of the public waiting
in line were unable to see or hear the CITY COUNCIL meeting.

28.
At the June 22, 2016 CITY COUNCIL meeting, police officers barred access to
the third floor gallery.

29.
At the June 22, 2016 CITY COUNCIL meeting, no members of the public
waiting in line were allowed in even when people in the council chambers left.
30.
At the June 22, 2016 CITY COUNCIL meeting, no members of the public
waiting in line were allowed in.
-4-
31.
There was no opportunity for public comment at the June 22, 2016 CITY
COUNCIL meeting.
CITY COUNCILS POST-LITIGATION PUBLIC SEATING AND PUBLIC COMMENT
POLICIES
32.
At the time suit was filed, CITY COUNCIL did not have a written policy
regarding public seating.

33.
At the time suit was filed, CITY COUNCIL did not have a written policy
regarding public comment.

34.
On August 30, 2016, CITY COUNCIL for the first time adopted a written policy
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regarding public seating. Ex. A.

35.
The August 30 policy, among other things, sets aside 30 seats that may not be
reserved. All other seats may be reserved. Ex. A.

36.
The August 30 policy, among other things, only allows reservations to be made
no more than two weeks and no less than 48 hours before a meeting. Ex. A.
37.
The August 30 policy, among other things, requires those requesting seat
reservations to provide a name, contact information, the number of seats requested and a
description of the group. Ex. A.
38.
On October 4, 2016, CITY COUNCIL adopted a revised written policy regarding
public seating which only changed the contact information in the policy. Ex. B.
39.
On October 5, 2016, CITY COUNCIL for the first time adopted a written policy
regarding public participation at a committee of CITY COUNCIL. Ex. C.

40.
The public comment policy applies only to committee meetings and not full CITY
COUNCIL meetings. Ex. C.
-5-
41.
CITY COUNCIL has no written policies for public comment at CITY COUNCIL
meetings.
FUTURE CITY COUNCIL MEETINGS
42.
Upon information and belief and based upon Plaintiffs experience and the
testimony of CITY COUNCILs witness, Sgt. Joseph Kipka, about historic practices, more than
50 members of the public without seat reservations will attempt to attend one or more future
CITY COUNCIL meetings.
43.
Upon information and belief and based upon Plaintiffs experience and the
testimony of CITY COUNCILs witness, Assistant Sergeant-at-Arms Lamar Brown, CITY
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PAGE 6 of 13
COUNCIL will fill all available seat reservations at one or more future CITY COUNCIL
meetings.
44.
Upon information and belief and based upon testimony of CITY COUNCILs
witness Assistant Sergeant-at-Arms Lamar Brown, CITY COUNCIL will require groups seeking
reservations to describe themselves and will investigate these groups before granting
reservations.
45.
CITY COUNCIL does not have, and has never had, established and recorded
rules governing public comment at CITY COUNCIL meetings, but CITY COUNCIL does not
allow comment at CITY COUNCIL meetings.
COUNT I VIOLATION OF OMA MAY 18, 2016 MEETING
46.
The above paragraphs are incorporated by reference.
47.
CITY COUNCIL is a public body under OMA required to hold open meetings.
48.
CITY COUNCIL violated OMA Sections 1 and 2.01 by holding a closed meeting
on May 18, 2016.
-6-
COUNT II VIOLATION OF OMA MAY 18, 2016 MEETING

49.
50.
CITY COUNCIL is a public body under OMA required to provide an opportunity
for public comment.

51.
CITY COUNCIL violated OMA Section 2.06(g) by not providing an opportunity
for public comment at the May 18, 2016 meeting.
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COUNT III VIOLATION OF OMA JUNE 22, 2016, MEETING

52.
53.
54.
CITY COUNCIL violated OMA Sections 1 and 2.01 by holding a closed meeting
on June 22, 2016.

COUNT IV VIOLATION OF OMA JUNE 22, 2016, MEETING
55.
56.
for public comment.

57.
CITY COUNCIL violated OMA Section 2.06(g) by not providing an opportunity
for public comment at the June 22, 2016 meeting.

COUNT V VIOLATION OF OMA PUBLIC SEATING POLICY
58.
59.
60.
Upon information and belief CITY COUNCIL will use its newly adopted written
public seating policy at future CITY COUNCIL meetings in violation of OMA Sections 1 and
2.01.
-7-
COUNT VI VIOLATION OF OMA PUBLIC COMMENT POLICY

61.
62.
for public comment.

63.
Upon information and belief and based upon its own assertions, CITY COUNCIL
will not allow public comment at future CITY COUNCIL meetings in violation of OMA Section
2.06(g).
WHEREFORE, Plaintiffs ask that the Court:
i. enjoin CITY COUNCIL from refusing to comply with the OMA;
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ii. declare null and void all final actions taken at the May 18, 2016 CITY COUNCIL
meeting;
iii. declare null and void all final actions taken at the June 22, 2016 CITY COUNCIL
meeting;
iv. award THAYER and GARCIA reasonable attorneys fees and costs;
v. award such other relief the court considers appropriate.
RESPECTFULLY SUBMITTED,
____________________________
Attorneys for Plaintiffs
ANDREW THAYER
RICK GARCIA
Matthew Topic
Joshua Burday
-8-
LOEVY & LOEVY

311 North Aberdeen, 3rd Floor
Chicago, IL 60607
312-243-5900
matt@loevy.com
joshb@loevy.com
Atty. No. 41295
11/9/2016 3:38 PM
2016-CH-09212
PAGE 9 of 13
Alan Mills
UPTOWN PEOPLES LAW CENTER
4413 N. Sheridan Road
Chicago IL 60640
Alan@uplcchicago.org
Atty. No. 70272
-9-
Chicago City Council -Public Seating Policy

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.
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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 Sergeantat-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
Exhibit B
C000488
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2016-CH-09212
PAGE 11 of 13
STATE OF ILLINOIS )
)SS.
COUNTY OF COOK )
I, SUSANA A. MENDOZA,City Clerk of the City of Chicago, in the County of Cook and
State ofIllinois, DO HEREBY CERTIFY that the annexed and foregoing is a true and correct copy
of that resolution now on file in my office regarding Amendment of City Council Rules of Order
and Procedure by adding new Rule 58 to allow public participation at any committee meetingopen
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PAGE 12 of 13
to public under Open Meetin sg Act, which resolution was adopted by the City of Chicago at its
regular meeting held on the fifth (Sth~v of October, 2016.
I DO FURTHER CERTIFY that the original, of which the foregoing is a true and correct
copy, is entrusted to my care for safekeeping, and that I am the lawful keeper of the same.
IN WITNESS WHEREOF, I have hereunto set my

hand and affixed the corporate seal ofthe said City of
Chicago aforesaid, at the said City,in the County and
State aforesaid, this fifth(5th)day of October, 2016.
[T. P.]
_____~v~~~.-- ..
SUSANA A. MENDOZA,City Jerk
Exhibit C
C000489
SUBSTITUTE
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CHICAGO

The Rules of Order and Procedure of the City Council of the City of Chicago for the 2015
- 2019 term are hereby amended by adding a new Rule 58, as follows:
Public Participation
RULE 58.
Any member of the general public may address orally or in writing any committee
of the City Council at any meeting required to be open to the public under the Open Meetings
Act (5 ILCS 120/1, et seq.). Any such person who orally addresses a committee of the City
Council shall:
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(1) be physically present inside the assembly room where the committee's meeting
takes place and submit a request to testify;
(2) limit his or her remarks to three minutes;
(3) limit his or her remarks to the subject matter appearing on the agenda of the
meeting;
(4) refrain from profane language, obscene conduct,, or disruptive comments; and
(5) comply with the order of the Chairman of the committee meeting.
The committee Chairman has authority and discretion to: (i) curtail or limit public
comment if the witness fails to comply with this Rule, and (ii) allow reasonable variances from
the three-minute time limit in appropriate, non-discriminatory, circumstances.
.-`;
r~ ,h~
dward M. urke
Alderman, 14th Ward
Q~~
Michelle A. Harris
Alderman, 8th Ward
C000490

3rd Amended Complaint, Thayer &amp; Garcia v. Chicago City Council

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3303

(7/08/10) CCG N003

CHICAGO CITY COUNCIL

CORPORATION COUNSEL(CHICAGO CITY COUNCIL)

or as soon thereafter as counsel

Judge's stead, in the courtroom usually occupied by him/her, located at

Court Room 2405

, Illinois, and present

Plaintiffs' Motion for Leave to Amend Complaint

LOEVY & LOEVY

PROOF OF SERVICE BY DELIVERY

non-attorney certify that on the

PROOF OF SERVICE BY MAIL

non-attorney certify that I served this notice by mailing

and depositing the same in the U. S. Mail at

, with proper postage prepaid.

PROOF OF ELECTRONIC SERVICE

non-attorney certify that on the

PLAINTIFFS MOTION FOR LEAVE TO AMEND COMPLAINT

THIRD AMENDED COMPLAINT

Plaintiff ANDREW THAYER (THAYER) is an individual who resides in Cook

Plaintiff RICK GARCIA (GARCIA) is an individual who resides in Cook

Defendant CHICAGO CITY COUNCIL (CITY COUNCIL) is a public body

located in Cook County, Illinois.

scheduled for 10:00 a.m.

chambers doors at 8:30 a.m on May 18, 2016.

the chambers were marked reserved.

signs indicating that they were reserved.

COUNCIL meeting were directed to sit in reserved seats.

COUNCIL meeting scheduled for 10:00 a.m.

in line were unable to see or hear the CITY COUNCIL meeting.

the third floor gallery.

waiting in line were allowed in.

regarding public seating.

regarding public comment.

regarding public seating. Ex. A.

reserved. All other seats may be reserved. Ex. A.

On October 4, 2016, CITY COUNCIL adopted a revised written policy regarding

regarding public participation at a committee of CITY COUNCIL. Ex. C.

COUNCIL meetings. Ex. C.

testimony of CITY COUNCILs witness, Assistant Sergeant-at-Arms Lamar Brown, CITY

The above paragraphs are incorporated by reference.

on May 18, 2016.

COUNT II VIOLATION OF OMA MAY 18, 2016 MEETING

The above paragraphs are incorporated by reference.

CITY COUNCIL is a public body under OMA required to provide an opportunity

for public comment.

CITY COUNCIL violated OMA Section 2.06(g) by not providing an opportunity

for public comment at the May 18, 2016 meeting.

COUNT III VIOLATION OF OMA JUNE 22, 2016, MEETING

The above paragraphs are incorporated by reference.

on June 22, 2016.

The above paragraphs are incorporated by reference.

CITY COUNCIL is a public body under OMA required to provide an opportunity

for public comment.

CITY COUNCIL violated OMA Section 2.06(g) by not providing an opportunity

for public comment at the June 22, 2016 meeting.

The above paragraphs are incorporated by reference.

COUNT VI VIOLATION OF OMA PUBLIC COMMENT POLICY

The above paragraphs are incorporated by reference.

CITY COUNCIL is a public body under OMA required to provide an opportunity

for public comment.

LOEVY & LOEVY

Chicago City Council -Public Seating Policy

3rd Amended Complaint, Thayer & Garcia v. Chicago City Council

3rd Amended Complaint, Thayer & Garcia v. Chicago City Council