Judge Keeps Evanston Voter Initiative Referendum Off Ballot

CHICAGO — A Cook County judge agreed with Evanston's electoral board that a proposed referendum to establish a new process for citizen-initiated ballot questions is too confusing for the ballot and not allowed by existing law. Supporters of the effort, the Evanston Voter Initiative, said they intend to appeal the decision to an appellate court.

"This was a very interesting case," Circuit Judge Maureen Kirby said Thursday after delivering her ruling following what she described as "robust and interesting" oral arguments. "And I know the appellate court will give us direction."

The initiative would have set up a procedure where a couple dozen Evanston voters could get an ordinance drafted. Signatures from 8 percent of recent voters — the same amount currently required to place an advisory referendum — in support of a summary of the ordinance would be required to send the proposal to the City Council.

According to the proposal, if aldermen fail to pass it, the draft ordinance would head to voters on the next ballot, then, if approved by a majority, become law unless the City Council vetoed it within 30 days of the election.

Following a challenge from a group of three Evanston residents, Jane Grover, Betty Hayford and Kent Swanson, the city's municipal electoral board held a hearing on the matter over the course of two nights last month. Two of the three board's three members agreed with the objectors' argument that the proposal was prohibited by existing state law and improperly vague.

For the first time in at least a decade, and likely ever, the board hired an outside attorney, retaining Ancel Glink partner Dan Bolin to assist in the hearing. The objectors represented themselves before the three-member board, composed of the mayor, city clerk and senior alderman. Former Gov. Pat Quinn, a longtime supporter of expanding initiative referendum in Illinois, has been representing Allie Harned, the lead petitioner for the Evanston Voter Initiative.

Supporters of the referendum filed suit in Cook County Circuit Court, asking a judge to invalidate the board's ruling and mandate that election officials place the question on the March 17 primary ballot.

The objectors retained Peter Friedman and Hart Passmen, both partners at Holland & Knight and village attorneys in North Shore municipalities, to represent them in court. Ancel Glink continued to represent the electoral board —although an initial engagement letter described the firm's client as the city government and not the electoral board, a follow-up letter after the Jan. 15 electoral board ruling named the client as both the city government and the electoral board.

Related:
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At Thursday's hearing, Kirby said she agreed with arguments presented by attorneys representing the objectors and those board.

"This is a really important case. It's important to all of your clients, to the citizens of Evanston. I take my charge seriously," Kirby said. "This has been very well briefed by very capable attorneys, but I can only do what I can do, in the sense that I can't go beyond the record."

While the judge said it was a closer call on the first objection — that the initiative conflicts with existing laws and the constitution — she concluded with confidence that the question, as proposed, is too confusing for the ballot.

For one thing, Kirby said, it was not clear whether the future referendum questions contemplated by the proposal would themselves be binding.

"Is it advisory or is it binding?" the judge said. "That's confusing."

Even if the judge were to agree with Quin and the supporters of the referendum petition, she said referendum might be precluded from the ballot by a prohibition on having two referendums that modify a form of municipal government on the same ballot.

Arguing for the objectors, Passman said state law does not permit the creation of new forms of municipal government via referendum.

"This is a whole new form of government that simply doesn't exist in Illinois law," he said. "It is replacing the Evanston City Council with a voter referendum process. ... This is upending any form of municipal government that any of us in Illinois have seen."

Passman argued the referendum proposal was fatally flawed, and any referendum generated through the citizen-initiative process it describes would be invalid.

"They are asking you to bless a system that is unconstitutional the moment the next referendum comes through it," he said.

Quinn disagreed. He said the initiative would alter, not replace, Evanston's form of government by giving new powers to the city clerk and City Council, allowing voters to suggest ideas for aldermen to consider. The referendum process for local governments authorized in the 1970 Illinois Constitution was "designed to encourage creativity and flexibility," he argued.

"You can't cite a single case where what you're trying to do has been done," Kirby told Quinn.

Supporters of the referendum have pointed to Arlington Heights, where a similar citizen-initiated legislation process was established in 1981. But Arlington Heights has never used the process, and it has never been challenged in court, making the lawsuit on behalf of the Evanston Voter Initiative a case of constitutional first impression — the first time a judge has reviewed the issue.

Kirby said there could be a lot of unconstitutional ordinances currently in municipal codes because they have never been challenged.

"This is a case of first impression," Kirby said. "And it's an important one."

The judge rejected Quinn's argument that the election board had demonstrated bias during the hearing. The former governor had focused on an motion, introduced by Ald. Ann Rainey and quickly withdrawn, to sustain the objections, alleging she tried to toss the proposed referendum off the ballot even before arguments on their merits. Quinn also contended Bolin, the outside attorney hired by the city for the electoral board hearing, had improperly acted as an advocate for the objectors.

Rainey, who attended Thursday's hearing, said her motion had intended merely to open discussion of the objection. Under the City Council rules Rainey has become familiar with over the more than three decades she has served as aldermen for the 8th Ward, such a motion opens debate when seconded.

"I misunderstood the plan of how to proceed with getting debate started. It was a simple error and the minute it was pointed out to me I withdrew it," Rainey said. "I wasn't trying to rush thing through."

The senior alderman explained the law department last year began retaining outside counsel to represent the quasi-independent ethics and electoral boards to avoid accusations of conflict of interest. She said she had not demonstrated bias at the hearing and believed Quinn was aware of the true intentions behind her motion.

Quinn said he was disappointed with the ruling but his clients were eager to appeal it.

"I think there's good grounds for appeal, and it's an important case because, even the judge said, it's a case of first impression. We want to bring the issues to the appellate court," he said. "We thought the whole objection should have been dismissed because they didn't do it right, and that's a big issue that hasn't really been explored."

Quinn said he still believed Rainey had demonstrated prejudice against the referendum at the electoral board hearing, suggesting there was good case law for a court to review the record and find the board was unfair. But even if an appeals court does not find the electoral board was biased, he said, there are plenty of good reasons to overturn the judge's decision.

"We think we're right on the law, and we'll start with that," Quinn said. "Sometimes law is not made at the circuit court level, it's made at the higher courts, and I think we've got some good issues that we can pursue. And they worked so hard. So many people were involved, it deserves to be reviewed by an appellate court."

Harned, the initiative's lead petitioner, previously headed up efforts to place a citizen-initiated, non-binding referendum opposing the demolition of the Harley Clarke mansion and coach house on the November 2018 ballot. Harned said she was disappointed the judge did not appear to be open to arguments on her behalf or care about bias she said was shown at the electoral board hearing.

"This is an initiative process that could have ramifications in the entire state of Illinois, so we're excited for what it could do for all the people of Illinois," Harned said after the hearing. "We are most excited about what it can do for the people of Evanston, of course, but we understand that if we go through the appeal process. ... It's a precedential decision, and so if we can win this — even if we don’t get it on the Evanston ballot — it's going to open it up for the entire state of Illinois."