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UNDERSTANDING THE USES AND LIMITATIONS
OF THE ADVISORY REFERENDUM

By JOHN B. MURPHEY, Rosenthal, Murphey, Coblentz & Janega, Chicago, IL

In the fifteen years since the Legislature adopted the Election Consolidation Act of 1980, we have experienced an ever-increasing proliferation of referenda appearing on both statewide and local ballots. At the state level, voters have been presented with binding referenda dealing with proposed amendments to the Illinois Constitution. At the local level, scarcely an election goes by without one or more bond issue requests or tax rate increase proposals appearing on the ballot. With the advent of tax cap legislation in the collar counties, and the prospect of similar legislation being proposed for both Cook County and other downstate regions, municipalities and school districts will be forced to go to the voters for approval of an ever-increasing range of tax and finance measures.

There has also been a proliferation of another form of referendum the advisory referendum. At both the state and local level, advisory questions have appeared on the ballot requesting voter opinion on issues ranging from gun control to tax caps to matters of international concern such as nuclear arms proliferation. Frequently these referenda are dismissed as being meaningless political rhetoric. However, the advisory referendum especially at the local municipal level can serve important policy interests in a representative democracy. In order for those goals to be served, advisory referenda must be properly framed and submitted to the voters.

Advisory Questions of Public Policy

The Illinois Election Code does not use the term "referendum." Instead, the Election Code establishes rules and regulations regarding "questions of public policy," defined to mean any question, proposition or measure submitted to the voters dealing with any subject matter other than the nomination or election of candidates.

Questions of public policy may be initiated in one of two ways: by an ordinance or resolution adopted by the local governing body, or by a petition properly submitted by a requisite number of voters. For example, a municipality seeking to place on the ballot the question of whether it should become a home rule unit, may do so through the passage of an ordinance so providing. In counties not affected by tax cap legislation, voters may put the issue of whether a municipality may levy a special tax for installment contract purposes through a petition filed by 10% of the registered voters of the municipality.

These examples of binding referenda should be contrasted with advisory questions of public policy which are also specifically recognized in the Election Code. Section 28-6 authorizes the initiation of advisory public questions upon a written petition signed by 10% of the registered voters in any local governmental district. Section 28-6(c) makes clear that such questions "shall be advisory public questions and no legal effects shall result from the adoption or rejection of such proposition." Because no other provision of the Election Code specifically authorizes an advisory referendum initiated by the local governing body, there has been dispute over the years as to whether such authority exists.

In 1983, the Illinois Attorney General rendered an opinion (No. 93-013) concluding that non-home rule counties lack the statutory authority to initiate referenda on advisory questions of public policy. That Attorney General's Opinion was shared in a 1988 legal opinion of the Cook County's State's Attorney's Office (No. 1896), concluding that even under home rule status, "the Cook County Board may not initiate referenda on advisory questions of public policy by resolution or ordinance where the authority to set such procedure has been reserved to the Legislature and, therefore, may be initiated only by petition [initiated by voters]." The State's Attorney's opinion also noted that such view was shared by the general counsel of the Illinois State Board of Elections.

However, that view has not been shared by the trial level courts in this state considering the question. In two 1990 cases, Oak Brook Park District v. DuPage County Board of Election Commissioners, 90 MR 410 (1990) and Rudnick v. Kusper, 90 CO 297 (1990), the trial courts in Cook and DuPage Counties held that Sections 28-1 and 28-5 of the Illinois Election Code grant authority to local governing bodies to authorize or initiate by ordinance or resolution advisory questions of public policy. The Circuit Court of Cook County has revisited and endorsed that view in Lehman v. County of Cook, 94 CO 33 (1994). Thus, it can be concluded that a municipality possesses the statutory authority under the Illinois Election Code to initiate advisory referenda and place them on the ballot at any applicable election.

However, the recent opinion of the Circuit Court of Cook County in Lehman makes it clear that the authority to initiate advisory questions does not grant local governments a license to exploit the ballot with argumentative or misleading questions. Lehman involved

July 1994 / Illinois Municipal Review / Page 25


the following advisory question of public policy initiated by the Cook County Board:

SHALL THE OFFICE OF THE REGIONAL SUPERINTENDENT OF SCHOOLS BE TERMINATED IN COOK COUNTY AND THE DUPLICATE SERVICES BE TRANSFERRED TO THE STATE BOARD OF EDUCATION, THEREBY SAVING COOK COUNTY PROPERTY TAXPAYERS OVER $2,000,000 PER YEAR WHICH COULD BE SPENT IN THE CLASSROOM FOR OUR SCHOOL CHILDREN?
[Emphasis added]

Lehman filed suit in the Circuit Court of Cook County, seeking to have the question removed from the ballot at the March 15, 1994 Primary Election. Lehman argued that the form of the referendum question was improper because it was argumentative, suggestive and compound. The County took the position that the language in the question dealing with possible savings and prospective uses of those savings amounted to an "informative component" of the question and did not invalidate it.

The Circuit Court of Cook County agreed with Lehman's position and ordered the question removed from the primary election ballot. In particular, the court emphasized that a municipality which initiates even an advisory referendum has the obligation to set forth the question in as neutral and non-argumentative a fashion as possible. In addition, a question must avoid including multiple components which are not compatibly interrelated to one another in order to avoid a violation of the "free and equal" provision of Article III, Section 3 of the Illinois Constitution. For example, an individual may indeed favor the elimination of this particular office but would rather see the savings reallocated to other areas of expenditure (such as prisons or hospitals) than education. As framed, the question in Lehman prevented that voter from expressing his or her will. The voter would be put in the position of having to vote against the question entirely contrary to his wishes, or vote in favor of the question entirely, again contrary to his wishes. The Lehman court held that referendum questions must be framed so as to avoid presenting voters with this Hobson's choice.

The Lehman opinion thus recognizes both the importance and the limitations of advisory referenda. These questions can serve a valuable purpose in gauging pubic opinion on important issues. The results of these referenda can be used as a basis for initiating or repealing legislation.

At the same time, Lehman instructs that municipal officials have an obligation to ensure that such questions must be framed consistent with the general purpose of our election laws, which is "to obtain fair and honest elections," and "to obtain a correct expression of the intent to the voters." Ferguson v. Ryan, 251 Ill. App.Sd 1042, 191 Ill.Dec. 414, 418 (2d Dist. 1993);

Pullen v. Mulligan, 138 Ill.2d 21 (1990). If advisory questions are initiated by local officials to compel a desired result, they are subject to challenge and removal from the ballot.

Page 26 / Illinois Municipal Review / July 1994


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