COMMENTS

THOMAS W. KELTY, Chief Counsel,
Illinois Municipal League

FORUMS, FINANCES AND FINALITY

"The Governor may return a bill together with specific recommendations for change to the house in which it originated. The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house. Such bills shall be presented again to the Governor and if he certifies that such acceptance conforms to his specific recommendations, the bill shall become law. If he does not so certify, he shall return it as a vetoed bill to the house in which it originated."

This language comes from Article IV, Section 9 of the 1970 Constitution of Illinois. This procedure established in subsection (e) enables the Governor to consider the arguments presented by citizens, state agencies and organizations, such as the Illinois Municipal League, for and against certain provisions of bills enacted by the legislature after those bills have been approved by the legislature. Two bills of interest to municipalities that were passed by the legislature in its most recent session illustrate the operation of the procedure and the "win some... lose some" results that the process yields.

Of the ninety-six bills contained on this year's Legislative Report summarizing those bills of particular interest to municipalities (to be published in the next edition of the Review), sixteen were amendatorily vetoed by the Governor and returned to their respective houses. Of those sixteen, the legislature failed to concur with his changes in four cases, overrode the changes of the Governor in three cases and concurred with the changes of the Governor in nine of the bills. The fact that the Governor's recommendations were accepted in over fifty percent (50%) of the cases demonstrates the effectiveness of the procedure and points out that the legislative process no longer ends with the passage of legislation by the respective houses.

Under the 1870 Constitution, the Governor had two choices when presented with a piece of legislation: veto it or sign it. This lack of latitude in considering legislation effectively ended the legislative process when a bill left the legislature. There was no opportunity to present additional arguments to the Governor for change in legislation and no second opportunity to reargue the case for certain changes to the legislature in the event that a change was agreed to by the Governor.

Under the amendatory veto provisions enacted in the 1970 Constitution, the process is expanded to enable an interested group or party to argue its case again to both the legislature and the Governor in support of or opposition to a particular legislative item. Often, the arguments presented to the Governor out of the heat of the legislative battleground and away from the glare of media coverage can enable calmer consideration of controversial proposals that could (and often do) adversely affect certain interest groups.

A particularly good example of competing positions resulting in an amendatory veto is presented by House Bill 692. Prior to the enactment of this bill, an action being brought against a public, municipal, governmental or quasi-municipal corporation was required to be filed in a county in which the principal office of the governmental unit was located. One of three changes to the Code of Civil Procedure made by this bill allows the filing of such an action in the county of the principal office of the governmental unit or "in the county in which the transaction or some part of the transaction complained of occurred." The practical effect of this legislation on a municipality could be to force a municipality to defend against an action in a county far re-

December 1987 / Illinois Municipal Review / Page 11

moved from its principal location thereby substantially increasing the cost of defending the action and possibly encouraging a municipality to settle an action that it would otherwise litigate because of the increased cost and inconvenience of defending. The changes permit an attorney considering the filing of a suit against a municipality to go "forum shopping" in the hope of obtaining an edge for his client.

"Forum Shopping" is a technique that is used by attorneys in the selection of a court in which to file a lawsuit. Prior to the amendments made by HB 692, an attorney considering filing an action against a municipality had one choice of forum; the court in the county in which the municipality is located. Under the revised provisions after HB 692, that same attorney may have a choice of two or more forums in which the suit may be filed. Consider the following example. A municipality located in Jo Daviess County (the Northwesternmost county in Illinois) buys goods from a firm located in Massac County (the Southeasternmost County in Illinois). The goods are delivered from the vendor's warehouse in St. Clair County (along the Mississippi River). A dispute arises and the vendor wants to file an action against the municipality. Prior to HB 692, the vendor's attorney had one choice; the court located in Jo Daviess County. After HB 692, the attorney has three choices in this situation: Jo Daviess County, Massac County or St. Clair County. The reasons for which the attorney would pick any one of the three are varied. Possibly, the attorney would want to litigate the case in Massac County in the hope of obtaining a more favorable position for his client, the local businessman. In other words, a kind of "home court advantage." The detriment to the municipality is obvious. The municipality has the choice of sending its attorney to Massac County each time his presence is required or hiring a local attorney with whom the municipality is unfamiliar.

This bill was strongly opposed by the Illinois Municipal League and supported by the Illinois Trial Lawyers' Association. Notwithstanding the arguments of the League that the bill would permit "forum shopping" by potential plaintiffs and the potential for increased cost to municipalities, the bill was passed and sent to the Governor. Because of the amendatory veto process, the League was able to obtain a "second shot" at overcoming the disadvantageous provisions of the bill.

Subsequent to the passage of the bill, the League and others interested in the bill voiced their concerns regarding the legislation and its potential effects upon Illinois municipalities to the Governor. Those efforts bore fruit when, on September 25, 1987, the Governor returned the bill with an amendatory veto message recommending deletion of the offensive language. This action by the Governor gave a "second shot" to municipalities to persuade the legislature to change its position. Unfortunately, that effort was unsuccessful and the amendatory veto was overridden causing HB 692 to become law on November 6, 1987.

A more successful example of the procedure at work is shown by the amendatory veto of SB 1243. This

Page 12 / Illinois Municipal Review / December 1987

bill added provisions authorizing a "backdoor referendum" prior to the issuance of sewer revenue bonds even if the bonds are being issued to finance an improvement project that was ordered by the Illinois EPA or the Federal Government. In operation, the provisions of the bill could have left a municipality in a position where a required improvement could not have been paid for with proceeds of a revenue bond sale if the voters of the municipality defeated a referendum authorizing the issuance of the Bonds.

After similar persuasive efforts by the League, the Governor, apparently convinced by the arguments, returned the bill to the legislature on September 24, 1987. In his message, he pointed out that

"Senate Bill 1243 poses a potential severe detrimental effect on non-homerule municipalities which must finance wastewater treatment facilities pursuant to either an enforceable compliance order or a compliance schedule developed in accordance with the Federal Clean Water Act. . . . The only impact of a backdoor referendum would be to possibly eliminate the principle (sic) source of funds available for the local government to comply with such a mandate. If forced to finance such a project out of the general corporate fund, it would drain resources needed for other municipal purposes and could lead to the financial ruin of a municipality."

Upon reconsideration of the bill, the legislature agreed with the Governor's position and accepted his revisions to the bill. Although the legislature does not issue a formal statement of its reasons for accepting the changes recommended by the Governor, its vote is evidence of its agreement with the Governor.

But not every position advocated to the legislature or the Governor in this process is accepted. Certainly, neither the League or any other lobbying group can be successful in its efforts on every occasion. But, on each occasion where a group wishes to be heard by a single arbiter prior to final enactment of legislation, the opportunity is there. And, as illustrated by the number of amendatory vetoes not concurred in by the legislature, convincing the Governor is only half the battle.

The unique procedure of the amendatory veto helps insure that the legislative process in Illinois is a partnership between the legislators and the Governor. The process allows the Governor to say to the legislature, "Let's look at this decision once more to make sure it is the right one." While not all decisions made in the legislative process are necessarily the ones that all interested parties would want, at least their objections are heard and considered. Coach Dick Motta, formerly of the Chicago Bulls, became famous for saying "The opera ain't over 'til the fat lady sings." In the Illinois-legislative process it can be said, "The bill ain't law until the legislature and governor sing, . . . sometimes twice." •

December 1987 / Illinois Municipal Review / Page 13