The court case seeking to cancel the referendum to put the McHenry Township Road District under the Township Board in 2021 was not decided at Thursday’s hearing.
After an hour and a half of oral arguments, mainly on behalf of the opponents of the referendum, Associate Judge Kevin Costello there were two issues:
- whether the plaintiffs had established grounds for a quo warranto action
- whether the plaintiff Annual Town Meeting Electors had the statutory authority to direct the McHenry Township Board to conduct a cost-benefit study concerning putting the Road District under the Township Board
The Court asked plaintiff’s attorney Genna Hibbs if she wished time to file additional written information to which she asked for an opportunity to confer with her clients, a number of whom were seated in the courtroom.
After a break, Hibbs returned and pointed out the ballots were set to be printed on September 27th.
Then, she announced that her clients would throw themselves
“at your mercy on the ballot question.
“We please beg for you that the township removed this [referendum] from the bllot.
“We could put this on the spring ballot..”
She asked this “in the interest of justice and fairness.”
Township Attorney Jim Militello objected.
The Judge told Hibbs that if she could get her supplementary brief to him by Friday he could work on the case over the weekend.
Costello then said,
“Well, I’m certainly not going to grant your oral request now.”
Militello asked to be able to reply, which was granted with a deadline of Tuesday.
The Judge said he would issue his written opinion at 9 AM next Thursday with no further oral arguments allowed.
The key question in the case seems to be whether the resolution directing the Township Board to conduct a cost-benefit study is authorized by state law.
Indeed, at the beginning of the hearing Judge Costello pointed out that action taken by the Annual Meeting Electors “must be within powers in the Township Code.”
Later, he pointed out that McHenry Township is not a Home Rule [unit]. Under Dillon’s Rule, a township only has the powers given to them in the stature.”
And still later, “Nevertheless, under Dillon’s Rule, it has to be established that Electors have the power to do so.
“I don’t believe there is a specific reference to a [cost-benefit]study.”
Gibbs pointed to an appellate court decision (Baldacchino v. Thompson, 6-19-99) out of Cook County.
She argued the Township Code implied the power for the resolution, referring to references to competitive bidding for Road District trucks.
That the source of the money to pay for the study was not named, the Court pointed out.
“The Electors made it very clear it wanted a study. There’s nothing that allocates cost. Sometimes the devil is in the details.”
Gibbs argued that McHenry Township financial reports “shows the township has the funds.”
Judge Costello again returned to whether state law authorizes an Annual Towns Meeting to order a cost-benefit study.
“I certainly understand the equitable arguments…but Township Electors’ …powers are limited and spelled out in the statutes.
“Do they have the statutory to direct that…regarless of the optics?
Hibbs argued that the Town Electors “have control over the budget.”
[That has not been true since the late 1960’s, when Nunda Township Electors set the Road Commissioner’s budget at $ per line item. I think it was the next year, the General Assembly gave budgetary powers to the Township Board.]
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