Illinois Supreme Court Rules McHenry County Clerk Joe Tirio Wrong in Keeping Second McHenry Township Abolition Referendum Off the Fall 2020 Ballot

When the Republican Bob Anderson faction controlled the McHenry Township Board, it authorized a second township abolition question on the General Election ballot.

2017-21 McHenry Township Board and elected officials.

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:

OPINION

“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).

Ҧ 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.

Ҧ 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

Ҧ 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.

Ҧ 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,

Mootness

“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.]

CONCLUSION

Ҧ 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.



Comments

Illinois Supreme Court Rules McHenry County Clerk Joe Tirio Wrong in Keeping Second McHenry Township Abolition Referendum Off the Fall 2020 Ballot — 28 Comments

  1. Funny, Rino turd Joe “Blow” Tirio overreached and got his hands chopped off.

    Who appointed him to front for townships?

  2. Good news for McHenry Township voters, bad news for McHenry County Clerk Joe Tirio.

  3. Don’t worry, Tirio thinks evidence is fanciful tales and misinformation.

    Watch Seth Kashel explain the Biden victory in HI.

    And Bob Anderson the corruption exists in the voting process.

    I support your cause.

    Until people wake up to the corruption we are doomed.

    Cal I sent you an email with this link.

    Securi isn’t worth what you pay for it.

    https://www.youtube.com/watch?v=OS0X3wvxueo

  4. If past performance (the premise of his speech) always predicted future behavior (as he states it should), casinos would be out of business and everyone would be a billionaire in the stock market.

    Flip a coin five times and they’re all heads.

    If you believe his premise, every future flip should be heads because that’s what happened in the past. “Trends, bellwethers…”

    He needs to take a basic statistics class but he likely thinks they’re rigged too.

  5. Militello wasn’t involved with the circuit court or appellate court in this case

  6. Tirio got chumped again by his thug township supporters and the pathetic State’s Attorney.

    But the McHenry judge Costello got reemed by the decision too.

  7. When an ultralib disgraced* township hack like Al Zielinski comes out for anything, BEWARE!

    *Disgraced bc, as an incumbent, he went down to defeat in his re-election campaign by a 9:1 margin.

  8. Tirio was correct: the question should not have been on the ballot.

    He did not have the statutory authority to determine the question, however.

    The legislature needs amend to set out an enforcement mechanism: give county clerks the authority or some other means to enforce.

    Barring the repetition of a referendum but leaving it up to the courts to determine is too slow an enforcement mechanism.

  9. The correct procedure would have been for Joe to accept the referendum and let someone file a court challenge to enjoin him.

    He took the law into his own hands here.

  10. Ok Everbody, Martin has just overruled the Supreme Court.

    So the libtards chalk up another victory in their minds, totally divorced from reality.

    Cal, how could the state’s attorney and Tirio lose if the other side didn’t even get to argue?

    I assume that’s because the board composition changed.

    But somebody on the township side laid an egg alright.

    Who is the McHenry Township attorney?

  11. For me this adds ti my reason to vote libertarian for clerk in the November Election. Joe Tirio abets the the steal and doesn’t trash the cheat software.

  12. It appears Joe maybe worse than predecessor Mary. LOL

    Bottom line is Bob Anderson and pals waste more tax $$$$$ their proposal instead of doing what is really needed, prove with facts and related numbers that getting rid of a township will actually save tax $$$$s.

  13. The Supreme Court went with the arguments made before the Appellate Court and found them more persuasive thsn those offered in response at the Supreme Court level.

  14. BecauseScience is correct, Clerk Tirio took the law into is own hands, and lost.

    As for the nob, what a waste of time on his posts.

  15. **Ok Everbody, Martin has just overruled the Supreme Court.**

    Reading comprehension is difficult, I see.

    Try reading Martin’s second sentence.

    Here — I’ll re-post it for your convenience:

    “He did not have the statutory authority to determine the question, however.”

  16. Yeah I read this several times.

    Nowhere does it say Tirio was wrong whether it belonged on the ballot within 23 months or not.

    It just said

    “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.

    They didn’t say the township was right.

    It just said The Clerk should have handed it off to legal for opinion, even tho the statute seems clear enough.

    If he did that the township would be in the exact same place.

    No referendum on the ballot , imho

  17. Nobody on this blog is overruling the state supreme court.

    People are allowed to believe judges, even supreme court judges (of the state of Illinois or the United States), get decisions wrong.

    Unless Joe Tirio misplaces tens of thousands of votes like Mary McLellan did in 2018, he’s not as bad.

    There is no Libertarian candidate for clerk; there is a Libertarian candidate for treasurer but not sheriff or clerk.

    There are two Democratic candidates, Mary Mahady and Drew Georgi, running for county clerk.

    Mary Mahady is a salaried township office holder (McHenry Township Assessor) and last I heard Drew Georgi was an underwear salesman.

    What software do they want to use?

    Do you think either of them would be more serious about election security?

    The party that wants 16 year olds and illegal aliens to vote?

    The party that wants mail in votes sent to everybody in every election?

    The party that thinks voter ID and voter roll purges are inherently evil?

    The law says the same question can’t be asked more than once in a 23 month period and Tirio knew it had just been asked.

    He applied common sense but the court ruled against him.

    So readers are aware, McHenry township voters had a choice on the township abolition question during the 2020 primary and they rejected it.

    79 percent said no.

    A slightly different question to abolish the township’s road district was instead asked in 2021 and 81 percent said no.

    Voters in McHenry County repeatedly reject efforts to consolidate or eliminate townships and township road districts.

    These questions have been voted down at other times too and in other townships.

    Off the top of my head, Nunda recently said no (although that question wouldn’t have gone into effect until like 2037 so it was worded badly) and there was a vote to abolish townships throughout the entire county back in 1994 that was rejected by voters by a 3-1 ratio.

    I don’t understand why this is the hill some activists want to fight and die on.

    It’s terribly unpopular.

    None of the township trustees from 2017 even bothered running again in 2021, maybe due to all the backlash.

    Townships do relatively little and are highly restrained in their functions by Illinois law (or perhaps the state’s constitution).

    Have you ever looked at what municipalities waste your money on?

    More of your taxes are collected there, and they have broader powers to spend (and to tax especially if they are home rule) than townships do.

    Bob Anderson has 30 years of failure on this issue.

    Your time and resources as an activist are limited.

    I mentioned municipalities, and schools are the elephant in the room making up about 20 times more than townships of your tax bill, yet schools get little interest and people squabble about townships.

    Townships are a weird thing to prioritize in terms of public policy and you’ve had no success in persuading people in 30 years.

    Put it on the ballot again.

    Watch voters say no again.

  18. I didn’t say the supremes were wrong.

    I said Tirio was right in that the question ought not to have been on the ballot.

    He was wrong in thinking he had the authority to keep it off.

    It should have been on.

    If it had passed, then lengthy litigation would’ve resulted in overturning the result.

    And we would have been where we are now.

    Get it on the ballot the right way and let the voters decide.

  19. Prove the township are a waste then put it on the ballot, stop wasting tax payers $$$$ on old man BS.

  20. Correcting, former Bloomingdale Township Road Commissioner Robert Czernek pleads guilty to taking $282,000 in kickbacks from the owner of an excavation company in exchange for approving contracts for road work that in many cases was never preformed.

    Former Thornton Township Supervisor Frank Zuccarelli was paid an annual salary of about $250,000, which is more than Gov. J.B. Pritzker makes.

    Zuccarelli who died January, 2022 had been Thornton Township supervisor since 1993!

    If townships were such a bargain all states would have them on their tax bills, most don’t.

    You can be a state senator or representative and also be a township supervisor, assessor or road commissioner simultaneously colleting a paycheck and benefits from both offices.

    If townships did not exist, would voters vote to establish them?

    Of course not.

    It’s not about the amount that’s on your tax bills, it’s about they are no longer needed in the 21st century.

  21. Bob Anderson, you will never win until we go back to at least paper ballots.

    Voter id and no mail in ballots would pretty much cement it for you.

    Until then there is too much grift to the grifters that profit from it to be lost by eliminating townships.

    So, ES$S/Dominion machines will continue to tell us what we should believe.

    You know like Joe Biden received 81m votes for hiding in his basement during the 2020 election cycle.

    I am with you on your crusade.

  22. I don’t see how pointing out instances of individual office holders being corrupt is a good reason to get rid of the office in general and given that there are thousands of townships in the state that have existed since the 1800’s your examples are a bit underwhelming.

    State legislators are corrupt too, should we get rid of the state legislature?

    Same with village board members. But that’s not a big deal.

    Bob, the problem you’re having is the anti-township side hasn’t done a good enough job at explaining what the alternative would look like, shown what the savings would be, or reassured people especially in rural areas that their roads would be maintained.

    Compounding this is the county officials themselves saying they have no clue what they’d do!

    Or we could make this even simpler, here’s the problem: People don’t like uncertainty, they like predictability and stability.

    Voters are dispositionally conservative about institutions and if you want to radically change something you better come prepared to answer questions.

    What you view as bad by saying it’s an antiquated practice from the mid 1800’s, other people will respond with, “Yeah, we’ve been doing this since the mid 1800’s so what’s the problem and why should we stop now?”

    Algonquin Township should have been ground zero for the anti-township stuff given their embarrassing history with their township government, yet the abolish side couldn’t even get the required signatures.

    Maybe try there next time.

    Sounds like that place is still all goofed up with Sandberg and Funk.

    It’s also the most built up or suburban looking township.

    Notice how there is NO effort in the sparsely populated / rural townships to get rid of their governments.

    Maybe Algonquin Township, which is very much not rural, would be a good place to try it.

    Just a thought.

  23. Well said “Correcting” on both comments.

    Bob started with a place that thinks highly of their Township!

    Crusade the crappy ones Bob if you possibly want any change!

    And Joe Tirio’s legal advice came from Kenneally didn’t it?

    So is it Kenneally that recommendeds this since he represents the County elected officials?

  24. While many of us opposed Sandberg’s election because she was an inexperienced rookie, she has been trying to improve her knowledge of road maintenance and is an improvement over the do-nothing loser Gasser.

    Funk seems to be trying to expose the Ludzow and Gasser leadership as wasteful losers, but his approach is questionable to say the least.

    “People don’t like uncertainty, they like predictability and stability.”

    that is a fact and until it is proven with facts and related numbers most people who live on township roads will vote against elimination of the Highway Depts.

    McDOT leadership is against adding more roads to be maintain, that isn’t what we would call stability.

  25. Supreme Court never said Tirio’s decision was wrong.

    Just that he should’ve let it get on the ballot, have someone contest it and THEN it would’ve been tossed out by a judge.

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