This month’s column focuses on the issue of whether the County Clerk may make the determination that a Township referendum is prohibited and refuse to place the proposition on the ballot, or whether the Clerk is obligated to perform the ministerial act of doing so.
In McHenry Township v. The County of McHenry, 2022 IL 12758, the Illinois Supreme Court first looked to the Illinois Constitution stating:
“the legislature shall provide by law for the formation of townships in any county when approved by county-wide referendum. Townships may be *** dissolved *** when approved by referendum in each township affected.” Ill. Const. 1970, art. VII, § 5. Proposals for the dissolution of a township “may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law.” Id. § 11(a).
The Illinois Supreme Court next reviewed the statutory framework of Article 24 of the Township Code. Article 24 provides for the dissolution of townships in McHenry County through referendum proposed by a township board. McHenry County. Pub. Act 101-230 (eff. Aug. 9, 2019) (adding 60 ILCS 1/art. 24).
Specifically, 24-15 provides that any board of trustees of a McHenry County Township may adopt a resolution to dissolve the township to submit to the voters of a township at the next upcoming election. Section 24-30(a) provided the following example to be strictly conformed to:
“Shall the (dissolving township), together with any road districts wholly within the boundaries of (dissolving township), be dissolved on (date of dissolution) with all of the township and road district property, assets, personnel, obligations, and liabilities being transferred to McHenry County?
YES
NO” Id. § 24-30(a).
Appellate Court’s Reliance on People ex rel. Giese v. Dillon
In People ex rel. Giese v. Dillon, 107 N.E. 583 (Ill. 1915), citizens of La Salle County submitted a petition to include the question “Shall this town become anti-saloon territory?” on the ballot. Id. The clerk refused to add the question to the ballot, stating that it did not comply with the law as the sworn statements were not signed by authorized individuals at the bottom of each page and the signatures were not given in person by legal voters.
Affirming the trial court’s ruling that the clerk was required to add the question to the ballot, the Illinois Supreme Court agreed that it is the clerk’s responsibility to determine whether a petition for a question is valid upon the “face of the petition”. Id. However, the clerk may not look outside the four corners of the petition to determine whether the petition does in fact comply. Id. The clerk is obligated to submit the question to the voting citizens. Id.
The authority of individuals signing at the bottom of pages and the legitimacy of the signatures of authorized votes could not be determined based upon the face of an election petition. Id. Looking solely at the face of the petition, the clerk must conclude that it is in compliance with the law and would be obligated to submit such a question to the voters. Id. Should the petition, on its face, have not appeared to comply with the statutory laws, the clerk could have rightfully refused to submit the petition to the voters. Id.
Appellate Court’s Reliance on North v. Hinkle
In North v. Hinkle, Plaintiffs filed nominating papers for candidacy of various city positions. North v. Hinkle, 229 Ill.Dec. 579 (Ill. App. 1998). Plaintiffs included the required statements of economic interest and nonpartisan petitions for nomination. Id. However, Plaintiffs omitted the required “statement of candidacy”. Id.
Since Plaintiffs failed to submit a “statement of candidacy”, the city clerk did not submit Plaintiffs’ names for the ballot. Id. Plaintiffs argued that the clerk lacked the authority to do so and failed to file any objections to their nominating papers as required by section 10-15 of the Election Code (the Code) (10 ILCS 5/10-15 (West 1996)). The clerk argued that pursuant to her duty under section 10-8 of the Code (10 ILCS 5/10-8 (West 1996)), she was obligated to determine whether each candidate’s papers complied with the code and may refuse to certify them from the ballot if they do not comply. North v. Hinkle, 229 Ill.Dec. 579 (Ill. App. 1998).
Section 10-5 of the Code (10 ILCS 5/10-5 (West 1996)) requires a statement of candidacy to be included with nominating papers. Plaintiffs were not in compliance with the code and the trial court agreed with the clerk. Id.
The Appellate Court agreed that the question of whether a “statement of candidacy” was included with nominating papers was specifically the kind of question which could be answered based upon review of the face of the papers themselves. The clerk was able to make such a determination as a ministerial act and could properly refuse to certify Plaintiffs on the ballot.
The Clerk May Not Look Outside the Face of the Petition to Determine if it Complies
Section 10-8 specifically addresses public questions and nominating papers as follows:
“Certificates of nomination and nomination papers, and petitions to submit public questions to a referendum, being filed as required by this Code, and being in apparent conformity with the provisions of this Act, shall be deemed to be valid unless objection thereto is duly made in writing within 5 business days after the last day for filing the certificate of nomination or nomination papers or petition for a public question ***.” 10 ILCS 5/10-8 (West 2018).
While Section 10-8 permits a clerk to deny nominating papers and petitions for public questions of they do not have “apparent conformity” with the law, it does not reference public question resolutions and therefore, does not apply to township initiated public question resolutions. McHenry Township v. The County of McHenry, 2022 IL 12758. In this case, the clerk exercised authority under section 28-5.
Since there is no device for individuals to object to a public question which is initiated by a resolution, the clerk argued that it is the clerk’s position to determine whether a question may be in violation of section 28-7 and to prevent such a question from being placed on the ballot.
However, the Illinois Supreme Court held that a county clerk or even a private citizen could seek a judicial determination regarding the validity of a public question stating:
“The unambiguous text of section 28-5 does not authorize a clerk to reject a proposition on the ground that the same proposition appeared less than 23 months earlier, because section 28-7 is outside the limitations of section 28-1.” Id.
In conclusion, a proposition to dissolve the township must be in compliance with article 28 of the election code. In this case, the restriction preventing the same proposition on the ballot within 23 months is under section 28-7 rather than 28-1. Defendant’s exercise of section 28-5 was improper and did not permit the clerk to prevent the dissolution from appearing on the ballot under a violation of section 28-7.
Comments