When the Republican Bob Anderson faction controlled the McHenry Township Board, it authorized a second township abolition question on the General Election ballot.
Previously, supporters of continuing township government had petitioned for an abolition referendum on the Primary Election ballot, a measure that side of the issue handily won.
Because he considered the two referendum questions to be identical, McHenry County Clerk refused to place the second referendum on the ballot.
The outgoing Republican Township Board majority sued to force Tirio to put the question on the ballot.
At the Circuit Court level, the Anderson majority lost, so it appealed, with attorneys James Militello and Robert Hanlon signing the briefs.
Today, the Illinois Supreme Court upheld the Appellate Court, ruling Tirio was wrong in his decision to keep the question off the fall ballot.
From the Illlnois Supreme Court:
“In the March 2020 primary election, the voters in McHenry Township (township) rejected a proposition to dissolve the township.
“A few months later, the township’s board of trustees adopted a resolution to place a nearly identical
proposition on the November 2020 general election ballot.
“The township submitted the proposition to defendant Joseph Tirio, the clerk of defendant McHenry County, to place the proposition on the ballot.
“Tirio refused to do so, notifying the township that the proposition violated the statutory prohibition against “the same proposition” appearing on the ballot more than once within 23 months. 10 ILCS 5/28-7 (West 2020).
“¶ 3 The township filed a complaint for a writ of mandamus or mandatory injunctive relief to compel defendants to place the referendum proposition on the November 2020 ballot.
“The circuit court, citing the March 2020 ballot, dismissed the complaint with prejudice. 735 ILCS 5/2-619(a)(9) (West 2018).
“The appellate court reversed the dismissal, holding that, regardless of whether the proposition was prohibited from appearing on the November 2020 ballot, Tirio lacked the statutory authority to make that determination and was obligated to perform the ministerial act of placing the proposition on the ballot. 2021 IL App (2d) 200478, ¶¶ 48, 52.
“¶ 4 Defendants argue on appeal that the Election Code and the Township Code authorized Tirio to determine whether the challenged proposition violated the general election law, including the 23-month ballot limitation, even though the
violation was not apparent from the face of the township’s submission.
“Defendants further contend that, although the two propositions contained different effective dates, the challenged proposition could not appear on the ballot because it was “the same proposition” that had appeared on the March 2020 ballot less than 23 months earlier.
“¶ 5 The township no longer wishes to pursue dissolution, so the parties’ positions are aligned against the result reached by the appellate court.
“However, for the following reasons, we affirm the appellate court’s judgment and reverse the circuit court’s judgment.
“The lengthy reasoning follows, which can be read here.
We’ll pick up the contents of the decision with what happened when the one-sided arguments reached the Supreme Court.
Supreme Court Proceedings
“¶ 43 Defendants filed a petition for leave to appeal, which we allowed pursuant to Illinois Supreme Court Rule 315 (eff. Oct. 1, 2020).
“The parties timely filed their briefs.
But on December 21, 2021, the township filed an unopposed motion to withdraw its appellee’s brief.
“The motion stated that the brief was not authorized by the township and that the township wishes to “dismiss [its] claims.”
“This court allowed the township to withdraw its brief and heard one-sided oral argument by defendants.
“¶ 44 At this point, the parties do not dispute whether Tirio was statutorily authorized to reject the proposition for violating section 28-7.
“The parties are aligned against the appellate court decision, but they have not taken any steps to resolve the litigation.
“Therefore, we address the arguments raised by defendants and decide the appeal.
The Court then noted,
“The issues raised by defendants are moot, given that the November 2020 election has passed….Courts generally do not decide moot questions (id.), but an exception to the mootness doctrine allows a court to resolve an otherwise moot issue if it involves a substantial public interest…Application of the exception is warranted here.”
Continuing, “A county clerk’s discretion to look outside the four corners of a proposition to make this determination is a matter of public concern…Perhaps a future election will alter the board’s membership, prompting a renewed attempt for dissolution. The two attempts to dissolve the township within one year of the enactment of article 24 of the Township Code indicate the likelihood this issue will recur.”
The opinion then points out that the Court’s role is to intrepert legislative intent and, then, addresses why it has disregarded the Motion to Dismiss.
Motion to Dismiss
“When we review a dismissal under section 2-619, we accept as true all well-pleaded facts as well as all reasonable
inferences that arise from them.
“However, we will disregard all legal and factual conclusions in the complaint that are not supported by specific factual allegations.
“We review de novo the circuit court’s dismissal of the township’s complaint and consider whether dismissal was
proper as a matter of law.”
A tantalizing sentenced caught my attention:
“…this court will consider only issues that have been fully briefed…”
Focusing on Tirio’s comparison of the March, 2020, Primary Election language with that proposed for the November, 2020, General Election wording, the Court wrote, “Our interpretation of the plain and ordinary meaning of section 28-5 indicates that Tirio was not so authorized.”
A previous court decision was quoted saying a clerk “actsas a ministerial and not as a judicial officer. [Par. 76.] The ministerial officer’s “only function is to determine whether, upon the face of the petition, it is in compliance with the law.”
The court argues that Tirio could have asked for court authorization to reject the referendum question, but did not. [Par. 87.]
“Most significantly, defendants’ policy argument is unsupported by the plain and ordinary meaning of the statutory language. 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…[Par.88.]
“¶ 90 In summary, when a township board of trustees in McHenry County adopts a resolution to initiate and submit to the voters a public question to dissolve the township, the proposition must adhere to article 28 of the Election Code. Id. art. 28.
“However, section 28-5 provides that a county clerk is authorized to give notice that the public question may not be placed on the ballot only when the question is prohibited by ‘the limitations of section 28-1.’ Id. § 28-5.
“The reason given for rejecting the proposition in this case—the prohibition against placing the same proposition on the ballot more than once in 23 months—is set forth in section 28-7, not section 28-1.
“Therefore, section 28-5 did not authorize the county clerk to prohibit the dissolution proposition from appearing on the ballot due to a violation of section 28-7.
” To resolve the appeal, we need not consider whether the proposition actually violated section 28-7.
“¶ 91 Appellate court judgment affirmed”
I have asked for McHenry County State’s Attorney Patrick Kennelly’s opinion to Tirio on the matter.