In Shoraga et al. v. Normal and Hounker Judge Mark Fellheimer has ruled in favor of Normal and Hounker granting their request to dismiss the case.
Fellheimer determined that section 3.1-25-95 of the Illinois state statutes regarding municipal code requirements that requires the offices of clerk, collector and supervisor be elected does not specify that the offices are required in municipalities that have home rule and therefore does not apply to them.
Fellheimer stated, “The court finds here that first off the petitioners did not have an unequivocal right to have their nominating petitions certified when the court finds that “95” is not a limitation on the Town of Normal’s home rule rights.”
Fellheimer continued, “And then second the clerk did not have an unequivocal duty to certify those petitions to offices that are not in existence in the town of Normal or at least up for election. Two were non existent. One was not up for election pursuant to local ordinance. So therefore they would not have their right for the nominating petitions to be certified.”
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Fellheimer then summarized, “Having made those findings then the court finds based on its already interpretation of section “95” not limiting the Town of Normal that therefore it had no option but to grant the 619 (a) (9) motion to dismiss on the basis that no right exists at the present time for these offices to be elected in the Town of Normal.”
And Fellheimer concluded, “By granting that motion I believe then it would render moot the petition for motion for summary judgement.”
The Town of Normal issued a press release in which Mayor Chris Koos said, “We are pleased the judge agreed with our legal team’s assessment. We are glad to put this issue behind us.”
Fellheimer based his decision largely on 5 ILCS 70/7 which reads, “No law enacted after January 12, 1977, denies or limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j) or (k) of Section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation or denial of the power or function of a home rule unit.”
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Tom Devore, attorney for Shoraga et al., argued that 5 ILCS 70/7 specifically leaves out Article VII of the Illinois State Constitution Section 6 (f) which states in part, “A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, … A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum, or as otherwise authorized by law.”
DeVore argued that since (f) is not mentioned in 5 ILCS 70/7 that the legislature could deny or limit any power or function of a home rule unit.
Fellheimer interpreted the overall sentiment of Article 7 Section 6 to be that if the legislature’s intent had been to restrict a municipality in this area they would have written “95” to specifically say it applied to a home rule unit. He argued that 5 ILCS 70/7 (h) and (i) supported his argument as well as other case law.
DeVore argued that (h), (i) and case law cited by Felheimer did not apply in this case because (f) was left out of 5 ILCS 70/7 and “95” is clear.
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Fellheimer then honed in on the phrase in (f) reading “otherwise authorized by law” referencing numerous other cases talking about interplay between the General Assembly and the Illinois Constitution.
DeVore argued that this case was not about the legislature limiting home rule but that Section (f) is what was limiting home rule.
Fellheimer clarified that DeVore was arguing “95” is “otherwise authorized by law” which DeVore agreed to. But Fellheimer argued the “otherwise” phrase also brought (h) and (i) into play.
Fellheimer also gave credence to Normal passing a referendum to form a managerial form of government and that appeared to influence his decision as well.