This spring supporters of McHenry Township government put a referendum on the ballot via petition, thinking they would have a better chance of defeating the abolition attempt then because of a lower turnout.
They were correct in their reasoning, marshalling over three out of four votes.
The Republican majority of the McHenry Township Board, however, did not give up on their crusade to eliminate the government they control.
The advanced another referendum and sent the request to put it on the ballot to McHenry County Clerk Joe Tirio.
Proposed June 12, the ballot question resulted follows:
“Shall the McHenry Township together with any road districts wholly within the boundaries of McHenry Township, be dissolved on February 8, 2021 with all of the township and road district property, assets, personnel, obligations, and liabilities being transferred to McHenry County? All funds of the dissolved township and dissolved road district shall be used solely on behalf of the residents of the geographic area within the boundaries of the dissolved township. Proceeds from the Sale of park land, cemetery land, buildings, or facilities after transfer to the county
must be utilized for the sole benefit of the geographic area of the dissolved township. The McHenry county Board shall not extend a property tax levy that is greater than 90% of the property tax levy extended by the dissolved township or road district for the duties taken on by McHerny County – Yes -NO”
Tirio reject the request asserting that the referendum was in violation of the Election Code because it was the same as the March referendum.
In response, the Board majority passed another resolution asking the following referendum question be put on the fall ballot:
“Shall the McHenry Township together with any road districts wholly within the boundaries of McHenry Township, be dissolved on February 8, 2021 with all of the township and road district property, assets, personnel, obligations, and liabilities being transferred to McHenry County?
Again, Tirio turned down the ballot access request.
The letter of reply read:
Dear Mr. Aylward:
I am writing to acknowledge receipt on July 6, 2020, of a second certification from the McHenry Township Clerk’s Office for a McHenry Township resolution for a referenda question to dissolve McHenry Township, effective February 8, 2021. This second resolution with a revised question was approved by the McHenry Township Board of Trustees at its meeting on July 6, 2020, pursuant to provisions in the Illinois Townships Code (60 ILCS 1/24-15 through 1/24-35). It was proposed for inclusion on the November 2020 General Election ballot for voters in McHenry Township. After reviewing the certification, the relevant sections of the Illinois Townships Code and the Illinois Election Code and, based on the authority granted election authorities in the Illinois Election Code (10 ILCS 5/28-5), I am writing to advise you that the proposed referendum question is prohibited and will not be placed on the November 2020 General Election ballot.
The question, as newly worded, no longer violates the form of the question standard provided in Section 1/24-30 of the McHenry Townships Code as did the first certified resolution and question originally received by the McHenry County Clerk on June 29, 2020. 60 ILCS 1/24-30. However, as also explained in the McHenry County Clerk’s Office July 1, 2020, response to that first proposed question, a referenda question to dissolve the McHenry Township must also comply with the Illinois Election Code timing requirements.
The proposed dissolution referendum is prohibited from being printed on the November 2020 General Election so soon after it was printed on the March 2020 General Primary ballot. Section 1/24-15 of the Illinois Townships Code states that a proposition to dissolve a township which is submitted by a board of trustees of a township must be in accordance with the general election law. 60 ILCS 1/24-15. Section 5/28-7 of the Illinois Election Code provides that referenda pursuant to this Section (cases authorized by Article VII of the Illinois Constitution) may not be held more than once in any 23-month period on the same proposition. 10 ILCS 5/28-7. Section VII of the Illinois Constitution is the genesis of authority to dissolve a township when approved by a referenda in the area in which township officers are elected. Ill. Const. Art. VII, §5. Because the same proposition to dissolve McHenry Township appeared on the March 2020 General Primary ballot with the sole change being the effective date seven and one-half months later, this same question is prohibited from being placed on the ballot again for a period of 23 months. Otherwise, an effective date change of even a single day would undermine the intent of and make Section 5/28-7 completely ineffective.
For the above stated reason, the McHenry Township Board of Trustees’ proposed referendum question to dissolve McHenry Township is prohibited from being placed on the November 2020 General Election ballot.
Joseph J. Tirio McHenry County Clerk
The Township Board has retained Attorney Robert Hanlon to file a mandamus action to force the County Clerk to put the question on the November ballot.
Hanlon writes, “Review of the language of the March referendum reveals it is not the ‘same’ as the
question presented by the McHenry Township Board.
“The difference between the two propositions (March 2020 proposition vs. the petition submitted for the general election) can easily be found in the date that the respective petitions seek dissolution of McHenry Township. These two propositions call for dissolution in different years and thus are not the same proposition.”
The filing argues that Tirio “exceeded his authority as the McHenry County Clerk when he looked past the face of the petition and elected to infer meaning to the intent of the statute inferring sameness, when his duty was limited to ascertaining if the language was the same or not.
“The McHenry County Clerk lacks the power to decide issues of content for propositions.”