Mary Anne Mason
A state appeals panel threw out a south suburb’s recall ordinance as unconstitutional on Monday because it was not approved by referendum.
The 1st District Appellate Court found that while the village of Dolton can enact an ordinance to recall elected officials due to its home-rule status, but it must be approved by voters first.
“A home-rule unit like Dolton does have the power to enact a valid recall ordinance, but only after it is approved via valid voter referendum,” Justice Mary Anne Mason wrote in the 12-page opinion.
The panel’s opinion reverses Cook County Circuit Judge Mary Lane Mikva’s ruling in December upholding the constitutionality of the ordinance. On remand, the panel directed Mikva to enter summary judgment in favor of the plaintiffs.
In June, Dolton’s board of trustees voted 4–3 in favor of an ordinance allowing for elected officials to be recalled by a majority vote. The ordinance prevents recalls from occurring during the official’s first year and last eight months in office.
If an official is successfully recalled, the ordinance calls for the mayor to appoint an individual to serve out the remaining term, with the other trustees’ approval.
The three trustees who voted against the ordinance — Tiffany Henyard, Stanley H. Brown and Robert G. Hunt Jr. — filed suit against the village in September.
In the suit, they asserted the ordinance was unconstitutional “on a number of grounds,” chief among them being the ordinance was approved without a referendum.
The trustees’ suit also named Mayor Riley H. Rogers and Village Clerk Mary Kay Duggan as defendants.
Mikva’s ruling in favor of the village relied on a 1981 decision from the 1st District Appellate Court. In Williamson v. Doyle, 103 Ill. App. 3d 770 (1981), the 1st District found that non-home-rule units cannot enact a recall ordinance but a home-rule one could.
The current 1st District panel found that, because Williamson focused on non-home-rule units and only touched on home-rule authorities in passing, the previous panel’s findings are dicta — not binding precedent.
Instead, the panel relied on the Illinois Supreme Court’s 1986 decision in Leck v. Michaelson, 111 Ill. 2d 523 (1986) in overturning Mikva’s order.
Leck addressed a village ordinance in Lansing — just a few minutes up the road from Dolton — that provided a runoff election if no candidate received a majority of the votes cast in an election.
The high court found that the way in which officials are elected in home-rule units can only be amended by the voters or by the General Assembly.
If an ordinance enacted by a home-rule unit changes the “terms of office” for an elected position or how an officer is selected to serve, then the ordinance must be approved first in a referendum.
The panel considers the “terms of office” to be the conditions the officials operate under, not simply the length of time they are in office.
“Just as Lansing’s ordinance affected the terms of office of those candidates subject to a runoff without changing the ‘term of office’ attached to the position, so too does Dolton’s ordinance impact the terms of office of those officials who are subject to recall,” Mason wrote.
The panel was also critical of the village’s defense of the ordinance. The village argued that the public gets to replace the unseated official with another following a successful recall. But the panel pointed out that such a power is reserved for the mayor.
“Consequently, an elected position becomes an appointed position by virtue of the recall ordinance,” Mason wrote.
The panel noted that it did not examine “the wisdom of recall” nor did it address the other constitutional issues the three trustees raised.
Both attorneys representing the three trustees and the village indicated in separate interviews that the panel’s ruling overturns Williamson and makes it tougher to enact a recall ordinance.
“In my opinion, Leck v. Michaelson tacitly overruled Williamson, and yesterday, the appellate court explicitly overruled Williamson,” said the trustees’ attorney, Christopher L. Petrarca, of Oak Brook-based Hauser, Izzo LLC.
The village’s attorney, John B. Murphey, of Rosenthal, Murphey, Coblentz & Donahue, did not say whether his clients would appeal to the Illinois Supreme Court.
He was critical of the ruling because voters would have to review the entire recall ordinance before casting their votes.
“Because referendum questions have to be completely self-contained, it’ll be very challenging to structure a question to have a valid recall ordinance go to the voters,” Murphey said. “The more complex a question is, the more challenging it may be for voters.”
The three trustees were also represented by William F. Gleason and Eric S. Grodsky, of Hauser, Izzo.
Justices Terrence J. Lavin and Aurelia Pucinski concurred with the opinion.
The case is Tiffany Henyard, et al. v. Village of Dolton, Illinois, et al., 2016 IL App (1st) 153374.