McHenry Township v. County of McHenry , 2021 IL App (2d) 200478 ( 2021 )

2021 IL App (2d) 200478No. 2-20-0478
Opinion filed April 15, 2021
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
McHENRY TOWNSHIP, ) Appeal from the Circuit Court
) of McHenry County.
Plaintiff-Appellant, )
)
v. ) No. 20-CH-248
)
THE COUNTY OF McHENRY and JOSEPH )
TIRIO, in His Official Capacity as the )
McHenry County Clerk, ) Honorable
) Kevin G. Costello,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Zenoff and Brennan concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, McHenry Township, sued defendants, the County of McHenry and Joseph Tirio,
in his official capacity as the McHenry County Clerk, for a writ of mandamus or mandatory
injunctive relief, seeking to place on the township’s November 2020 general election ballot a
referendum proposition, initiated by the township’s board of trustees, to dissolve the township.
Less than 23 months earlier, another dissolution proposition, which was initiated by township
electors, had appeared on the township’s March 2020 primary ballot. With the exception of the
proposed dissolution date, both propositions were identically worded. The trial court granted
defendants’ motion to dismiss the township’s complaint, with prejudice, finding that (1) Tirio had
2021 IL App (2d) 200478the authority to determine whether the second proposition violated the general election law, even
though he would have looked past the face of the filings to determine whether it conformed with
the law and the only other enforcement option—a private citizen suit—was not viable because it
would be costly and chaotic, and (2) the second proposition was the same as the first, even though
the two propositions contained different (statutorily prescribed) dissolution dates and, thus,
because the second proposition was submitted within 23 months of the first, it could not be placed
on the ballot (10 ILCS 5/28-7 (West Supp. 2019)). The township appeals. We reverse and remand.
¶2 I. BACKGROUND
¶3 In early 2020, the township’s electors submitted the following referendum proposition,
which was included on the township’s March 2020 primary ballot:
“Shall the McHenry Township together with any road districts wholly within the
boundaries of McHenry Township, be dissolved on June 21, 2020[,] with all of the
township and road district property, assets, personnel, obligations, and liabilities being
transferred to McHenry County?
Yes
No”
The voters rejected the referendum proposition.
¶4 On June 12, 2020, the township’s board approved a resolution to place the following
referendum proposition on the November 2020 general election 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? All funds of the dissolved township and dissolved road
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2021 IL App (2d) 200478district shall be used solely on behalf of the residents of the geographic area with the
boundaries of the dissolved township. Proceeds from the [s]ale 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 McHenry County—Yes—
N[o]”
¶5 On June 29, 2020, the township submitted to Tirio’s office a certification consisting of
several documents, including: (1) proof of filing of a certification of the proposition to dissolve
the township, (2) certification of resolution No. 1120068 concerning the resolution for a
proposition to be placed on the ballot, and (3) a certification of ballot.
¶6 The following day, Tirio objected to the filings on the basis that (1) the proposition’s
language did not comply with the proper form to appear on the ballot, as set forth in section 24-30
of the Township Code (60 ILCS 1/24-30 (West Supp. 2019)) and (2) the proposition was the same
referendum as that on the March 2020 ballot, in violation of the Election Code’s prohibition of
more than one referendum on “the same proposition” in any 23-month period (10 ILCS 5/28-7
(West Supp. 2019)).
¶7 On July 6, 2020, the township board approved the following revised proposition language:
“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?
Yes
-3-
2021 IL App (2d) 200478No”
¶8 On July 6, 2020, the township delivered to Tirio the second certification, to be placed on
the November 2020 ballot. The submitted documents included (1) proof of filing of a certification
of the proposition to dissolve the township, (2) certificate of resolution No. 1120068 concerning
the resolution for a proposition to be placed on the ballot, and (3) a certification of ballot.
¶9 Again, Tirio refused to place the referendum proposition on the November 2020 general
election ballot. In a July 7, 2020, letter, Tirio explained that, although the revised language
conformed to the statutory form for the ballot (see 60 ILCS 1/24-30(a) (West Supp. 2019)),
pursuant to the Township Code and the Election Code (including section 28-5 of the Election Code
(10 ILCS 5/28-5 (West 2018) (providing that, when “a local election official[1] *** is in receipt of
*** a certification for the submission of a public question at an election at which the public
question may not be placed on the ballot ***, such officer *** shall give notice of such
prohibition”)), the referendum proposition was prohibited because it did not comply with the
Election Code’s 23-month prohibition in that the same proposition to dissolve the township
appeared on the March 2020 primary ballot, with the sole change being the dissolution effective
date (7½ months later). In Tirio’s opinion, “[o]therwise, an effective date change of even a single
day would undermine the intent of and make Section [ ]28-7 completely ineffective.”
¶ 10 A. Township’s Suit
1
The clerk is the local election official of a county. See 10 ILCS 5/1-3(10) (West 2018) (a
“ ‘[l]ocal election official’ ” includes “the clerk or secretary of a unit of local government”).
Counties and townships are units of local government. Ill. Const. 1970, art. VII, § 1.
-4-
2021 IL App (2d) 200478¶ 11 On July 24, 2020, the township sued defendants for a writ of mandamus or mandatory
injunctive relief, seeking to have Tirio place the referendum proposition on the November 2020
general election ballot. It argued that Tirio lacked the power to decide issues of content for
propositions and that, even if he had such power, the two propositions at issue were not the same,
because they called for dissolution in different years. The township argued that Tirio exceeded his
authority as county clerk when he looked past the face of the filings.
¶ 12 On August 5, 2020, defendants moved to dismiss the township’s complaint (735 ILCS 5/2-
619 (West 2018)), arguing that the two propositions were the same, with the only difference being
the dissolution effective date, which is dictated by section 24-20(b) of the Township Code. See 60
ILCS 1/24-20(b) (West Supp. 2019) (requiring that the dissolution date be at least 90 days after
the date of the election at which the referendum is to be voted). The different effective dates,
defendants asserted, did not render the two propositions different questions. They further asserted
that, because referendum propositions to restructure government entities are limited to ballot
placement only once in a 23-month period, Tirio was required to prohibit the township’s July 2020
proposition from being printed on the November 2020 general election ballot. Pursuant to section
28-5 of the Election Code, he notified the township clerk of this prohibition. Defendants also
maintained that Tirio had the duty to print ballots and is charged with knowledge of past ballot
content. See 10 ILCS 5/16-5 (West 2018). As such, his determination that both propositions were
identical required no investigation. Defendants also asserted that, here, there is no statutory
provision for voters to object to the inclusion of the proposition and, thus, it is critical that the
county clerk ensure that the proposition is in the proper form and allowed.
¶ 13 The township took the position that Tirio lacked the power to decide issues of content for
propositions and that, even if he had such power, the two propositions were not the same.
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2021 IL App (2d) 200478¶ 14 B. Trial Court’s Order
¶ 15 On August 24, 2020, the trial court granted defendants’ motion and dismissed the
township’s complaint, with prejudice. The court found that the referendum proposition, on its face,
conformed with statutory requirements and that Tirio would have looked outside the four corners
of the filings to determine any alleged infirmities. However, the court noted that section 28-5 of
the Election Code states that the local election official or authority, such as Tirio, is charged with
notifying the entity that submitted the public question when it may not be placed on the ballot. The
trial court determined that section 28-5 “clearly contemplates a determination by someone as to
whether the public question violates any section of the Election Code, including [section] 28-7.”
The court queried, “if the local election official or authority is not charged with rendering that
determination, who is? The logical answer is the same election official or authority. No provision
in the Election Code suggests any other public official would have the standing or authority to do
so.” Strict enforcement of the position that the clerk’s determination is limited to a facial
examination of the document, the court further determined, “leads to an absurd result” and would
never result in a determination by that official that the proposed question violates section 28-7.
The court noted that sections 28-1 (10 ILCS 5/28-1 (West 2018)) and 28-5 make clear that public
questions must comply with all provisions of the Election Code, including section 28-7. Preventing
the election official from making a determination that a public question violates section 28-7
“would allow public questions violative of the Election Code to be placed on the ballot, clearly
contrary to the provisions of Section 28-1.”
¶ 16 The trial court distinguished case law upon which the township relied for the proposition
that the clerk cannot look beyond the face of the filings. The court noted that the case law involved
petitions, not a resolution such as here, and did not consider section 28-5 of the Election Code.
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2021 IL App (2d) 200478¶ 17 The trial court observed that section 28-4 provides an objection mechanism for
referendums initiated by petitions but not by resolution. See id. § 28-4. Here, because the
proposition was initiated by resolution, there is no mechanism in the Election Code whereby the
public can object. “Thus, if the election official is not the gatekeeper, there is no gatekeeper and
submitted public questions violative of Section 28-7 would be required to be placed on the ballot
in clear contradiction to the intent of Sections 28-5 and 28-1 of the Election Code.” The court
noted that enforcement of section 28-7 would be “impractical, if not impossible.”
¶ 18 Next, the trial court rejected the township’s argument that section 28-7 could be enforced
through a lawsuit brought by a private citizen (via a writ of mandamus or mandatory injunction)
to remove the question from the ballot:
“Putting aside the practical burdens of such a lawsuit (i.e.[,] cost to the litigants, the
significantly compromised time period for resolution)[,] such judicial ‘kicking the can
down the road’ would violate the purpose of Section 28-5, which requires determination of
all submitted public questions as to their conformity with the Election Code before their
placement on the ballot. The mechanisms of that Section, specifically the requirement that
the election official provide notice of a rejected question to the submitting party, allows
that party to do exactly what was done here: file a lawsuit contesting that rejection so that
a court can review same and determine whether the question should be placed on the ballot,
all in a timely fashion. Tirio rubberstamping a submitted public question he believes to be
violative of the Election Code on the assumption that a private citizen will bring a lawsuit
to enforce the provisions of the Election Code after Tirio had placed the matter on the ballot
would be shirking his duties under the Election Code. Furthermore, it would promote
chaos. If such a post[-]ballot printing challenge was brought and successful, Tirio would
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2021 IL App (2d) 200478then have to print all new ballots and destroy the old ones—a potentially monumental and
no doubt costly endeavor. The Court is disinclined to facilitate such an absurd scenario.”
(Emphasis added.)
¶ 19 The trial court rejected the township’s argument that, even if Tirio had the discretion to
determine that the referendum proposition violated section 28-7 of the Election Code, his decision
was erroneous and an abuse of discretion because the proposition is not the same question that
appeared on the March 2020 ballot. The court noted that the effective date is governed by statute
(section 24-20 of the Township Code) and that, thus, by its very nature, the effective date for a
proposed dissolution of a township will be different each time it is placed on the ballot. The court
also noted that the statute does not require that an effective date be specified and instructs that
referenda be in “substantially” the form appearing in the statute. Thus, the trial court concluded,
the effective date was superfluous. In contrast, the court noted, section 24-20 requires a petition
for referendum to include the effective dissolution date on the petition. The court found that the
two propositions at issue were “the same.” “The effective date is governed by statute and is not a
question the public can vote on.” A contrary reading of the statute, the court noted, would render
section 28-7 unenforceable as to township dissolution referenda, “a result clearly contrary to both
the Township [Code] and the Election Code.” The court determined that the legislative intent of
section 28-7 was “not to burden the public with the same referendum proposition every election
cycle.” It found that Tirio had the authority to reject the referendum proposition, which the
township submitted pursuant to resolution, and that his determination that the proposition violated
section 28-7 was correct. It dismissed the township’s complaint, with prejudice. The township
appeals.
¶ 20 II. ANALYSIS
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2021 IL App (2d) 200478¶ 21 The township argues that the trial court erred in dismissing its complaint. For the following
reasons, we agree.
¶ 22 A. Mootness
¶ 23 We first consider whether the issue before us is moot, given that the November 2020
election has passed and that it is impossible to grant the relief—placement of the proposition on
that ballot—that the township sought. The township argues that the public interest exception to the
mootness doctrine applies to allow us to resolve the otherwise moot issue of placement of the
proposition on the November 2020 ballot. It contends that the substantial public interest here
relates to the powers of a county clerk in determining for himself or herself whether the voters
could consider a ballot proposition. Defendants do not address mootness in their brief.
¶ 24 “An appeal is moot if no controversy exists or if events have occurred which foreclose the
reviewing court from granting effectual relief to the complaining party.” In re Shelby R., 2013 IL
114994, ¶ 15. Although courts generally do not decide moot questions, there are several exceptions
to this rule. Id.“One exception to the mootness doctrine allows a court to resolve an otherwise
moot issue if the issue involves a substantial public interest. *** The criteria for application
of the public interest exception are: (1) the public nature of the question, (2) the desirability
of an authoritative determination for the purpose of guiding public officers, and (3) the
likelihood that the question will recur. In re A Minor, 127 Ill. 2d 247, 257 (1989); People
ex rel. Wallace v. Labrenz, 411 Ill. 618, 622 (1952). A clear showing of each criterion is
required to bring a case within the public interest exception. See Kohan v. Rimland School
for Autistic Children, 102 Ill. App. 3d 524, 527 (1981).” Wisnasky-Bettorf v. Pierce, 2012
IL 111253, ¶ 12.
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2021 IL App (2d) 200478¶ 25 The public interest exception applies where the court action is warranted due to the
magnitude or immediacy of the interests at issue. Shelby R., 2013 IL 114994, ¶ 16. The exception
is narrowly construed. Id.¶ 26 Turning to the first criterion—the public nature of the question—a question of election law
is, “inherently, *** a matter of public concern.” Goodman v. Ward, 241 Ill. 2d 398, 404-05 (2011);
see also Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 208
(2008). This criterion is met here. We agree with the township that the question at issue here—
whether a county clerk has the authority to determine whether the 23-month limit in section 28-7
of the Election Code applies when the only difference between two public questions is the
dissolution date prescribed in article 24 of the Township Code—is a matter of public concern.
¶ 27 We also conclude that an authoritative determination of the issue is desirable for future
guidance of public officers. Issues of first impression may be reviewed under the public interest
exception. Shelby R., 2013 IL 114994, ¶ 20. As the township notes, the question here relates to the
application of the Election Code to a relatively new statute—article 24 of the Township Code (see
Pub. Act 101-230 (eff. Aug. 9, 2019) (adding 60 ILCS 1/art. 24))—that allows for the consolidation
of townships in the county. We believe that a ruling by this court will aid local election officials
and lower courts in deciding the nature of a county clerk’s duties under section 28-5 of the Election
Code and township dissolution issues in McHenry County, thereby, “avoiding *** uncertainty in
the electoral process.” Goodman, 241 Ill. 2d at 405 (holding that exception applied to determine
whether candidate seeking circuit judge office in a judicial subcircuit must be a resident of that
subcircuit at the time he or she submitted a petition for nomination to the office; court ruling would
aid election officials and lower courts in promptly deciding disputes, thereby avoiding uncertainty
in elections by resolving eligibility questions before voters cast ballots); see also Wisnasky-Bettorf,
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2021 IL App (2d) 2004782012 IL 111253, ¶ 13 (applying exception in case concerning the filling of vacancies in the
nomination of a public office and noting that issues were “long-standing and have not been
addressed by courts or the legislature”); Bonaguro v. County Officers Electoral Board, 158 Ill. 2d
391, 395-96 (1994) (applying exception to review whether constitution barred a political party
from filling a vacancy in nomination for judicial office by party resolution; noting that issues
concerning the subject “are long-standing and have not been addressed by courts or the
legislature”). Finally, we agree with the township that this question is likely to recur. The fact that
there were two attempts to dissolve the township within one year of the enactment of article 24 of
the Township Code is evidence of this likelihood. Thus, we choose to decide the substantive issues
in this appeal.
¶ 28 B. Dismissal of Township’s Complaint
¶ 29 When ruling on a motion to dismiss under section 2-619 of the Code of Civil Procedure, a
court must accept all well-pleaded facts in the complaint as true and draw all reasonable inferences
from those facts in favor of the nonmoving party. Coghlan v. Beck, 2013 IL App (1st) 120891,
¶ 24. As a result, a motion to dismiss pursuant to section 2-619 should not be granted unless it is
clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery.
Snyder v. Heidelberger, 2011 IL 111052, ¶ 8. We review de novo a dismissal pursuant to section
2-619. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383 (2004).
¶ 30 In addition, we review de novo questions of statutory construction. Taylor v. Pekin
Insurance Co., 231 Ill. 2d 390, 395 (2008). “The cardinal rule of statutory interpretation is to
ascertain and give effect to the intent of the legislature.” Krautsack v. Anderson, 223 Ill. 2d 541,
552 (2006). The language of the statute is the best indication of the legislature’s intent and
therefore must be given its plain and ordinary meaning. Id. at 553. If the language is unambiguous,
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2021 IL App (2d) 200478the statute must be given effect without the use of other aids of construction. Id. We cannot “depart
from the plain language of the statute by reading into it exceptions, limitations, or conditions not
expressed by the legislature.” Id. at 567-68. A court should not consider words and phrases in
isolation but instead should interpret each word and phrase in light of the statute as a whole. Id. at
553. “Each word, clause and sentence of a statute must be given reasonable meaning, if possible,
and should not be rendered superfluous.” Standard Mutual Insurance Co. v. Lay, 2013 IL 114617,
¶ 26. We interpret statutes with the presumption that the legislature did not intend to create
“absurd, inconvenient, or unjust results.” In re Application of the County Treasurer & ex officio
County Collector, 2013 IL App (1st) 130103, ¶ 9.
¶ 31 In its complaint, the township sought a writ of mandamus to have Tirio place the July 2020
referendum proposition on the November 2020 ballot. Where a public official has failed or refused
to comply with requirements imposed by statute, the court may compel the official to comply by
means of a writ of mandamus, provided the requirements for the writ have been satisfied. Noyola
v. Board of Education of the City of Chicago, 179 Ill. 2d 121, 132 (1997). An extraordinary
remedy, mandamus enforces the performance of a public officer’s official nondiscretionary duties
as a matter of right. Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007).
For mandamus to issue, a plaintiff must establish material facts that demonstrate (1) an
unequivocal right to the requested relief, (2) an unequivocal duty on the defendant to act, and
(3) the defendant’s unequivocal authority to comply with an order granting mandamus relief. Id.
at 433-34. Mandamus cannot be used, however, to compel a public official to perform an act that
requires the exercise of his or her discretion. See, e.g., McFatridge v. Madigan, 2013 IL 113676,
¶ 17 (“A writ of mandamus is appropriate when used to compel compliance with mandatory legal
standards but not when the act in question involves the exercise of a public officer’s discretion.”).
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2021 IL App (2d) 200478¶ 32 1. Constitutional and Statutory Framework
¶ 33 The Illinois Constitution states that the legislature “shall provide by law for the formation
of townships in any county when approved by countywide referendum. Townships may be ***
dissolved *** when approved by referendum in each township affected.” Ill. Const. 1970, art. VII,
§ 5. Article 24 of the Township Code, enacted in 2019, addresses the dissolution of townships in
McHenry County, and the legislative intent of the article is to “further the intent of Section 5 of
Article VII of the Illinois Constitution.” Pub. Act 101-230 (eff. Aug. 9, 2019) (adding 60 ILCS
1/art. 24). Further, the public act provides that
“[t]ransferring the powers and duties of one or more dissolved McHenry County townships
into the county, as the supervising unit of local government within which the township or
townships are situated, will reduce the overall number of local governmental units within
our State. This reduction is declared to be a strong goal of Illinois public policy.” Id.
¶ 34 Section 24-15 of the Township Code states that the board of trustees of any McHenry
County township may, by resolution, “submit a proposition to dissolve the township to the electors
of that township at the election next following in accordance with the general election law.[2] The
ballot shall be as provided for in Section 24-30.” 60 ILCS 1/24-15 (West Supp. 2019).
¶ 35 Section 24-30(a), in turn, states that, “[s]ubject to the requirements of Section 16-7 of the
Election Code, the referendum described in Section 24-25[3] shall be in substantially the following
form on the ballot:
2
The Election Code is “the general election law” of Illinois. 10 ILCS 5/1-1 (West 2018).
3
Section 24-25 addresses petitions, not resolutions, and provides that “[a] petition that
meets the requirements of Section 24-20 shall be placed on the ballot in the form provided for in
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2021 IL App (2d) 200478Shall 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).
¶ 36 Thus, as it relates to resolutions by a township’s board of trustees, article 24 provides
merely that (1) a board may submit to the electors a resolution to dissolve a township pursuant to
the Election Code and (2) the ballot must meet section 24-30’s requirements, which, in turn, state
that, subject to the requirements of section 16-7 of the Election Code, the referendum shall be in
the prescribed form. Here, the township’s board approved a resolution to dissolve the township
and, after revising the language, submitted to Tirio a proposition that conformed to section 24-
30(a)’s form. Section 16-7 of the Election Code states, in relevant part, that,
“[w]henever a public question is to be submitted to be voted upon and has been initiated
and certified in accordance with Article 28 of this Code, the election authorities[4] to whom
the question is certified shall print the question on the ballot for the proper election, and
shall cause it to be submitted in the proper precincts to those electors entitled by reason of
their residency to vote on such question.” (Emphases added.) 10 ILCS 5/16-7 (West 2018).
Section 24-30 at the election next following.” 60 ILCS 1/24-25 (West Supp. 2019).
4
An “ ‘[e]lection authority’ means a county clerk or a Board of Election Commissioners.”
10 ILCS 5/1-3(8) (West 2018).
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2021 IL App (2d) 200478The county clerk is in charge of printing all ballots, including referenda, and furnishing them to
the judges of election. Id. § 16-5.
¶ 37 The relevant provisions in article 28 of the Election Code that address the initiation and
certification of public questions are as follows. Section 28-7 of the Election Code addresses
constitutionally required referenda involving units of local government. It provides that, “[e]xcept
as provided in Article 24 of the Township Code,” in cases where article VII of the Constitution
“authorizes any action to be taken [(e.g., dissolution of a township)] by or with respect to any unit
of local government, as defined in Section 1 of Article VII of the Constitution [e.g., a township],
by or subject to approval by referendum, any such public question shall be initiated in accordance
with this Section.” 10 ILCS 5/28-7 (West Supp. 2019); see also Ill. Const. 1970, art. VII, § 1. The
question “may be initiated by the governing body of the unit of local government by resolution or
*** petition ***, requesting the submission of the proposal for such action to the voters of the
governmental unit at a regular election.” 10 ILCS 5/28-7 (West Supp. 2019). Section 28-7 “is
intended to provide a method of submission to referendum in all cases of proposals for actions
which are authorized by Article VII of the Constitution by or subject to approval by referendum
and supersedes any conflicting statutory provisions except those contained in *** Article 24 of the
Township Code.” (Emphasis added.) Id. (As noted above, as to resolutions, article 24 provides
merely that a board may submit a resolution to dissolve a township pursuant to the Election Code,
that the ballot must substantially be in the prescribed form, and that the ballot is subject to section
16-7 of the Election Code, which, in turn, states that, when the public question has been initiated
and certified pursuant to article 28 of the Election Code, the election authority to whom it is
certified must print the question on the ballot and shall cause it to be submitted to the precincts.)
Finally, as relevant here, section 28-7 provides that “[r]eferenda provided for in this Section may
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2021 IL App (2d) 200478not be held more than once in any 23-month period on the same proposition.” (Emphasis added.)
Id.¶ 38 Section 28-5 states that, no “less than 68 days before a regularly scheduled election, each
local election official shall certify the public questions to be submitted to the voters of or within
his [or her] political subdivision at that election which have been initiated by *** action of the
governing board of his [or her] political subdivision.” (Emphasis added.) 10 ILCS 5/28-5 (West
2018). As relevant here, the certification includes the form of the public question, the date on
which it was adopted by a resolution or ordinance by a governing body, and a certified copy of
any political subdivision resolution or ordinance requiring the submission of the public question.
Id. “Local election officials and circuit court clerks,” in turn, “shall make their certifications, as
required by this Section, to each election authority having jurisdiction over any of the territory of
the respective political subdivision in which the public question is to be submitted to referendum.”
(Emphasis added.) Id. As is also relevant here, section 28-5 also provides that, when “a local
election official *** is in receipt of *** a certification for the submission of a public question at
an election at which the public question may not be placed on the ballot ***, such officer *** shall
give notice of such prohibition” by, “in the case of a certificate from a local election authority, to
such local election authority, who shall thereupon *** notify the governing board which adopted
the initiating resolution or ordinance.” (Emphases added.) Id.¶ 39 Finally, the Election Code contains a mechanism for objections to petitions to submit
public questions to a referendum (see id. § 10-8), but it contains no such mechanism for objections
to resolutions or ordinances initiating a public question.
¶ 40 2. Tirio’s Powers
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2021 IL App (2d) 200478¶ 41 The township maintains that this case is analogous to People ex rel. Giese v. Dillon, 266
Ill. 272 (1914), where residents submitted petitions to have the town clerk put on the ballot the
question whether the town should become “anti-saloon territory”. The town clerk refused to do so,
because he determined that the signatures on the petition were neither of legal voters nor given in
person and because the sworn statements were neither signed by town residents nor sworn to. The
residents sought a writ of mandamus to compel the clerk to place the question on the ballot. The
supreme court affirmed the grant of mandamus relief, holding that, where the petition on its face
appears to comply with statutory requirements, the clerk may not look beyond the face of the
petition to determine whether it complies; he or she must submit the question to the voters. Id. at
275-76. The court noted that the validity (as contrasted with the number) of signatures and the
authority of officers cannot be examined from the face of the complaint, the petition was in
apparent conformity with the law, and the clerk was obligated to submit the question to the voters.
Id. The supreme court noted that the town clerk was a ministerial officer with no discretionary
power and that his duty was to examine the face of the petition to determine if it complied with
statutory requirements. Id.
¶ 42 The township also points to a subsequent case that illustrates the application of Dillon. In
North v. Hinkle, 295 Ill. App. 3d 84 (1998), the plaintiffs had filed nominating papers, seeking to
have their names placed on the ballot in a municipal election, but they failed to include a statement
of candidacy, as required by section 10-5 of the Election Code (10 ILCS 5/10-15 (West 1996)
(addressing consolidated and nonpartisan elections and certification of candidates; providing that
a “local election official with whom certificates of nomination or nominating petitions have been
filed shall certify *** the names of all candidates entitled to be printed on the ballot”)). The city
clerk refused to certify their names for the ballot, and the plaintiffs sought a writ of mandamus to
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2021 IL App (2d) 200478compel her to certify their names. The reviewing court affirmed the denial of their request, noting
that the plaintiffs had conceded that their nominating papers were not in “apparent conformity”
with the election law, as required by section 10-8 of the Election Code (id. § 10-8), and it noted
that whether the nominating papers included statements of candidacy can be determined from the
face of the papers themselves and that the clerk was “empowered to make that ministerial
determination.” North, 295 Ill. App. 3d at 88-89. See also Haymore v. Orr, 385 Ill. App. 3d 915,
917-19 (2008) (finding Dillon controlling and reversing grant of mandamus; holding that village
clerk had authority to withdraw certification of a binding referendum question for lack of sufficient
signatures to put the question on the ballot; election law provided that questions were to be placed
on ballot if they were in “apparent conformity” with the law (10 ILCS 5/10-8 (West 2004)
(addressing objections to nomination papers, public question petitions, and certain constitutional
amendments), and, because the petition was facially deficient for lack of sufficient signatures, the
clerk had authority to withdraw her previous certification of question for the ballot).
¶ 43 Here, the township argues that Tirio, like the clerk in Dillon, impermissibly looked beyond
the face of the filings. In both cases, the decision concerning a facial conformity was based on an
extrinsic fact: in Dillon, it was the actual residency status of the signatories to the petition, and,
here, it was the March 2020 ballot question. The township argues that defendants have failed to
cite any authority that Tirio must/can look beyond the face of the filings. The township also asserts
that the proposition here arose pursuant to article 24 of the Township Code, not the constitution,
and that, therefore, “the 23-month rule is not appropriate to be ruled upon.” As to the absence of a
statutory provision allowing voters to object to ballot placement of a public question arising from
a resolution, the township contends that voters have remedies; specifically, they (1) always have
the opportunity to vote on the measure at the ballot box, (2) always have the right to vote out of
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2021 IL App (2d) 200478office those who advance propositions not to their liking, and (3) possess the ability to create a
new township or road district if one was dissolved against their liking. Finally, the township asserts
that our legal system does not provide for voter intervention at every stage of the legislative
process; voters have input at the ballot box.
¶ 44 Defendants respond that Tirio is in charge of printing the ballots for all elections and,
therefore, is charged with knowledge of the content of previous ballots, including referendum
propositions, and cannot ignore the direct knowledge inuring from his duty to print ballots. To
determine that the two propositions at issue here are the same did not, they assert, require
investigation beyond facial review of the propositions. Defendants further argue that, even if
imputed knowledge is not sufficient, there is statutory authority for a county clerk to determine
and advise local officials that a referendum question is prohibited. They note that such questions
may be placed on the ballot by either signed petitions or resolutions/ordinances of local governing
boards of political subdivisions. See 10 ILCS 5/28-2(a), (c) (West 2018) (providing that petitions
must be filed not less than 92 days before the election and that resolutions/ordinances be adopted
not less than 79 days before a regular election); but see 60 ILCS 1/24-20(a) (West Supp. 2019)
(referenda petitions to dissolve a McHenry township must be filed no less than 122 days prior to
the election). Petitions that generate referenda ballot placement are subject to the same objection
procedures that apply to candidate nominating petitions (see id. § 28-4), however, these same
objection procedures do not apply to resolutions or ordinances to place referendum propositions
on the ballot. Instead, section 28-5 of the Election Code provides the clerk with the ability to
determine if and when certain propositions are prohibited from ballot placement and sets forth the
duty to advise local election officials of such prohibition.
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2021 IL App (2d) 200478¶ 45 Defendants take issue with the case law upon which the township relies. They note that
Dillon involved a petition, with citizens’ signatures, to place an anti-saloon referendum question
on the ballot and that the town clerk had investigated registration status to determine individuals’
eligibility to sign the petition. North, they note, involved signed nominating petitions to place on
the ballot municipal candidates who were not in apparent conformity because they failed to file
their statements of candidacy. Neither case involved, as here, a governing board resolution to
propose a ballot referendum proposition. Furthermore, defendants note, section 10-8 of the
Election Code, which the township’s case law addresses, concerns the ability to determine apparent
conformity of nomination papers and petitions to submit public questions, not governing body
resolutions to submit referendum propositions. Finally, they point out that the different treatment
of referenda petitions and referenda resolutions extends to the statutory deadlines that apply.
Resolutions must be adopted 79 days prior to the election, whereas signed petitions in McHenry
County must be filed no less than 122 days prior to the election (60 ILCS 1/24-20(a) (West Supp.
2019)). The earlier deadline for signed petitions, they contend, allows ample time for potential
objection/hearing procedures, but this same opportunity is not made available for governing body
resolutions. Thus, defendants argue, the only recourse for a governing body’s improper ballot-
question attempts is section 28-5 of the Election Code, under which the election authority assesses
submissions, determines their validity, and notifies local officials. Here, where there is no statutory
provision for voters to object to the inclusion of the public question on the ballot, it is important,
they assert, that the election authority ensure that the referenda question is in the proper form and
allowed.
¶ 46 We conclude that the trial court erred in dismissing the township’s complaint. Tirio’s
determination that the township’s July 2020 proposition was prohibited because it was identical to
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2021 IL App (2d) 200478one submitted less than 23 months earlier (in violation of section 28-7 of the Election Code)
necessarily required him to look beyond the face of the township’s July 2020 filings. Dillon is
clear that a ministerial officer such as Tirio may not look beyond the face of the filings to determine
whether the proposition complies with the law. Dillon, 266 Ill. at 275-76. From the face of the July
2020 filings, Tirio could not have known that a proposition with identical wording (except for the
dissolution date) was presented to the voters in March 2020.
¶ 47 This case does not present a scenario such as that, for example, in Haymore, where the
court held that the clerk had the power to withdraw a certification, because the petition was facially
deficient for lack of a sufficient number of signatures. Haymore, 385 Ill. App. 3d at 917-19. Nor
is it like Hinkle, where the court affirmed the denial of mandamus relief, because whether
candidate nominating papers included a statement of candidacy could be determined from the face
of the filings and the clerk had the power to make such a ministerial determination. Hinkle, 295
Ill. App. 3d at 88-89. Counting signatures and ascertaining whether required documents were filed
are clearly ministerial tasks within the scope of a clerk’s duties. Determining whether a proposition
had previously appeared on a township ballot within a statutorily prescribed timeframe, which
necessarily requires looking beyond the four corners of the filings, is not a ministerial task, as it
constitutes an assessment of the content of the filings.
¶ 48 We reject defendants’ argument that Tirio, who is in charge of printing ballots (10 ILCS
5/16-7 (West 2018)), was charged with knowledge of the content of prior ballots. He was not
charged with knowledge of prior township ballots. Again, this inquiry would have required an
investigation on his part that necessarily required looking beyond the face of the filings. Stated
differently, Tirio would necessarily have evaluated the content of the township’s proposition, an
exercise beyond his ministerial powers. His obligation to send notice to public officials of public
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2021 IL App (2d) 200478questions that may not be placed on the ballot does not, in our view, obligate him to evaluate the
content of the proposition. Such an act extends beyond his ministerial powers. We cannot infer
from the legislature’s grant of power to Tirio to print the ballots anything more than that narrow
ministerial task. Had the legislature intended that a county clerk may use his or her knowledge of
past ballots to ascertain whether a question submitted for the next election runs afoul of section
28-7’s 23-month prohibition, we believe that it would have made such power clear. In the absence
of such clarity, we believe that we cannot depart from Dillon or read into the statute authority that
is not there. Further, we believe that our holding is consistent with the legislature’s express policy
goal of reducing the number of local governmental units in this State. Pub. Act 101-230 (eff. Aug.
9, 2019).
¶ 49 The trial court noted that a holding in the township’s favor would result in the scenario
where the only remedy for violations of section 28-7 would be a private citizen suit for mandamus
or mandatory injunction, which would promote chaos. We are sympathetic to such concerns and
are aware of the financial impact such suits could have on governmental units potentially resulting
in the reprinting of ballots. However, we cannot ignore that Tirio is a ministerial officer. We further
note that, when faced with a public question that he or she believes may not be placed on the ballot,
a county clerk has the option of obtaining a judicial determination of the question. Thus, a citizen
suit is not the only available enforcement option.
¶ 50 In summary, the trial court erred in dismissing the township’s complaint. Having
determined that Tirio lacked the authority to reject the township’s proposition on the basis that it
did not comply with section 28-7’s 23-month prohibition, we need not reach the issue whether the
two propositions were the same.
¶ 51 III. CONCLUSION
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2021 IL App (2d) 200478¶ 52 For the reasons stated, the judgment of the circuit court of McHenry County is reversed,
and the cause is remanded for further proceedings.
¶ 53 Reversed and remanded.
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2021 IL App (2d) 200478No. 2-20-0478
Cite as: McHenry Township v. County of McHenry,
2021 IL App (2d) 200478Decision Under Review: Appeal from the Circuit Court of McHenry County, No. 20-CH-
248; the Hon. Kevin G. Costello, Judge, presiding.
Attorneys Robert T. Hanlon, of Law Offices of Robert T. Hanlon &
for Associates, P.C., of Woodstock for appellant.
Appellant:
Attorneys Patrick D. Kenneally, State’s Attorney, of Woodstock (Norman D.
for Vinton and Carla N. Wyckoff, Assistant State’s Attorneys, of
Appellee: counsel), for appellees.
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