McHenry Township v. County of McHenry
176 N.E.3d 1241
Ill. App. Ct.2021Background
- In March 2020 McHenry Township electors placed a referendum to dissolve the township on the primary ballot; voters rejected it.
- In June 2020 the township board adopted a resolution to submit a substantially identical dissolution referendum for the November 2020 general election, differing only in the statutorily required effective dissolution date.
- The township certified the question to McHenry County Clerk Joseph Tirio; Tirio objected, citing noncompliance with ballot form and the Election Code’s 23‑month prohibition on holding referenda "on the same proposition."
- The township revised the ballot language to conform to the prescribed form and refiled; Tirio again refused to place the question on the ballot, relying on his duties under 10 ILCS 5/28‑5 to notify submitting authorities when a question may not be placed on the ballot.
- The township sued for a writ of mandamus/mandatory injunction to compel placement; the trial court dismissed with prejudice, finding Tirio could look beyond the filings and that the two questions were the same.
- The appellate court reversed and remanded, holding the clerk lacked authority to look beyond the four corners of the submitted certification to determine whether section 28‑7’s 23‑month bar applied; it did not reach whether the two propositions were the same.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the county clerk look beyond the face of a submitted certification to determine that a proposed public question violates the Election Code’s 23‑month prohibition? | Clerk cannot look beyond the face of filings; if facially compliant he must submit the question. | Section 28‑5 gives the clerk a duty to determine and notify when a question may not be placed on the ballot; clerk’s knowledge of prior ballots supports looking beyond the filing. | Reversed trial court: clerk lacks authority to investigate beyond the four corners of the certification; such substantive assessment is not a ministerial duty. |
| Were the March 2020 and November 2020 referendum propositions the "same proposition" under section 28‑7 so as to trigger the 23‑month bar? | Different effective dissolution dates (statutorily prescribed) make the questions different. | The effective date is ministerial/statutory and does not render the substance different; they are the same proposition. | Not decided by appellate court (court declined to reach issue after ruling clerk lacked investigatory authority); remanded for further proceedings. |
| Is the appeal moot because the November 2020 election passed? | Public interest exception applies because issue concerns election administration and will recur. | (Defendants did not address mootness.) | Court applied the public‑interest exception and adjudicated the appeal. |
| Is mandamus an appropriate remedy to compel the clerk to place the question on the ballot? | Mandamus is available where an official fails to perform a ministerial duty; plaintiff seeks mandamus because filing was facially compliant. | If the clerk’s act is discretionary (to assess legality), mandamus is inappropriate. | Court held clerk’s duty is ministerial (cannot assess content beyond filings), so mandamus relief is a viable remedy; dismissal was erroneous. |
Key Cases Cited
- People ex rel. Giese v. Dillon, 266 Ill. 272 (1914) (ministerial clerk may not look beyond the face of a petition that appears in apparent conformity).
- North v. Hinkle, 295 Ill. App. 3d 84 (1998) (clerk may make facial, ministerial determinations where apparent nonconformity is discernible from documents).
- Haymore v. Orr, 385 Ill. App. 3d 915 (2008) (clerk may withdraw certification when petition is facially deficient, e.g., insufficient signatures).
- Noyola v. Board of Education of the City of Chicago, 179 Ill. 2d 121 (1997) (mandamus enforces performance of public officer’s nondiscretionary duties).
- Goodman v. Ward, 241 Ill. 2d 398 (2011) (election law issues are matters of public concern warranting authoritative guidance).
- Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200 (2008) (election disputes implicate public interest and guidance for election officials).