By STEPHANIE COLE
Home rule in Illinois: No. 1. The Constitutional provisions
Formerly local governments
had to turn
to the legislature
for authority to carry out
even the most trivial
functions. Forty states
have home rule provisions,
and the Illinois grant
is considered the broadest
in the nation
Chicago and 76 other Illinois
municipalities now have home rule status,
but "home rule" is hardly more than a
phrase to most of the 6.4 million people
residing in these cities because it is so new.
Home rule also applies to Cook County.
This is the first of four articles exploring
what home rule is likely to mean to local
government in our state. Future articles will
examine Supreme Court decisions that interpret home rule powers, the legislature's
reaction and response to home rule, and how
some home rule governments have used
their new powers.
WHEN delegates met in Springfield in
1969 and 1970 to draft a new constitution for the state of Illinois, one of the
most frequently expressed sentiments
was that units of local government be
granted some degree of "home rule."
Seventy per cent of the delegates (82 of
the 116) signed one or more member
proposals advocating various degrees of
home rule for municipalities and/or
counties. One proposal even called for
home rule for townships. Delegate Joan
Anderson, a member of the convention's Committee on Local Government, stated that the focus of committee and convention deliberations on
the subject "was not onwhether home
rule should be granted, but ratherhow
much andto whom." The establishment
of home rule powers was adopted by the
convention and subsequently ratified by
the state electorate as Article VII, section 6.
What is home rule? In Illinois prior to home rule, local
governments had to look to the General Assembly for authority to carry out all
their-local functions, even the most
trivial ones. In the early part of this century, for example, a state law had to be
enacted before Chicago could be certain
about its power to lease checkroom and
refreshment concessions on its
Municipal Pier, including the power to
permit the selling of peanuts on the pier.
Under home rule, however,
municipalities — cities, villages and incorporated towns — have the power "to
carry out daily governmental functions ,
and affairs without spending hours
upon hours of research to first determine whether we have the legislative
power to act. Now, if the question of
power to act arises, we ask ourselves,
'Could the legislature by legislative
enactment have provided us with the
power?' If the answer is yes, then we too
have the plenary power to act," notes
Louis Ancel, Chicago attorney and
long-time advocate of Illinois home
rule.
Automatic for cities over 25,000
What delegates did debate at length
was the size of units to be granted
automatic home rule status. The majority report of the Local Government
Committee called for automatic home
rule for all municipalities over 25,000
104/Illinois Issues/April 1975
A research associate at the Institute of
Government and Public Affairs, University
of Illinois, she is project director of the Illinois Home Rule Clearinghouse and
Policy Analysis Project and editor of the
Home Rule Newsletter, published as part of the project.
Home rule is a difficult concept to
define because it varies so widely in
form and application in the more than
40 states in which it exists. It always,
however, involves a shift in the balance
of power between the state and local
governments.
The Illinois home rule grant is considered the broadest in the nation, Unlike most other home rule states, in
Illinois a local government need not
adopt a charter, or "little constitution,"
to become a home rule unit. The convention's Local Government Committee considered a charter requirement
to be onerous because "municipal structure and organization in Illinois are sufficiently well developed to warrant the
grant of extensive local powers without
first requiring the adoption of a charter
for each municipality." Evidently other
convention delegates agreed, for they
did not debate this point on the convention floor.
population. One minority committee proposal, however -- submitted by two downstate and four Chicago Democrats --called for automatic home rule status for all municipalities regardless of size. On the floor of the convention delegates argued for various classifications ranging from 2,000 to 200,000 population. Eventually a compromise figure of 25,000 was adopted (Art. VII, sec. 6(a)).0ther municipalities may acquire home rule status by voter referendum, as 10 have since the adoption' of the Constitution. The smallest of these referendum units is Bryant (Fulton County, population 326). As of March 1975 there were 77 home rule municipalities, the majority in the six- county Chicago metropolitan area.
County needs elected executive
Under section 6(a), an Illinois county
may also become a home rule unit, but
it must have an elected chief executive
officer. To date, Cook is the only home
rule county; it acquired home rule
automatically upon adoption of the new
Constitution because it has an elected
chief executive officer. Referenda on
the home rule-county executive question were held in nine other counties
(DeKalb, DuPage, Fulton, Kane, Lake,
Lee, Peoria, St. Clair and Winnebago)
in conjunction with the March 1972
primary election. All nine failed by wide
margins. Probably the most important
reason for these defeats was the activities of various organizations,
notably STOP (Stop Taxing Our
People), which portrayed home rule as a
means by which county governments
could levy virtually unlimited taxes. In
some counties, elected officials see
home rule as a threat to their present
powers and job status, feeling that a
chief executive officer would become a
major independent political force.
A home rule county or municipality may divest itself of its status by referendum (sec. 6(b)). To date no such referenda have been held.
Non-home rule counties and Municipalities continue to operate, as They did before the new Constitution, under "Dillon's Rule." This legal theory, first enunciated in an 1868 case by Justice John F. Dillon of the Iowa Supreme Court, makes local governments entirely "creatures of the state." They have only those powers explicitly granted by the constitution and state law. A corollary to Dillon's Rule is that legislative and constitutional
The more controversial kinds of local revenue-raising powers are precluded for home rule units, and left to the General Assembly and the unforeseeable vicissitudes of the future. The door is closed, but It is not locked'
grants of authority to local governments must be strictly construed by the courts. As late as 1964, the Illinois Supreme Court held, "The city [Chicago] must have an express grant of authority from the General Assembly to enact the ordinances unless the power is necessarily implied in or incidental to power or powers expressly conferred" {Ives v. City of Chicago, 30 111. 2d 582).
Since home rule went into effect, several bills have been introduced in the General Assembly which would have granted substantial home rule powers to every municipality under 25,000 population, with no need for local referendum approval (H.B. 1575, 77th General Assembly; H.B. 1358, 78th General Assembly). H.B. 1575 was tabled, while H.B. 1358 died in the Committee on Rules. Sponsors of these bills included such diverse members of the legislature as downstate Republicans, a Chicago Republican, several suburban Cook County Republicans and Democrats from non-home rule municipalities.
In most of the other home rule states a home rule unit has only those powers spelled out in the constitution or in the unit's charter — an approximation of Dillon's Rule. An Illinois home rule unit, however, is free to govern itself except as limited by the Constitution or by the General Assembly in certain constitutionally specified ways, the most important of which is "preemption" (sees. 6(g), (h), and (i)). Preemption refers to the power of the state legislature to limit or deny most home rule activities.
Limits on taxing and debt powers
In addition to preemption, another
major constitutional limitation on a
home rule unit's powers concerns its
powers of taxation — limitations spelled out in section 6(e). A home rule unit
cannot (1) license for revenue, (2) impose taxes upon or measured by income
or earnings, or (3) tax occupations, unless the General Assembly grants these
powers. None has been granted in the
almost four years since the new Constitution went into effect, and no
proposals to grant such additional taxing powers have been introduced in
either the Senate or the House of
Representatives.
As noted by Local Government Committee John Parkhurst, "The more controversial kinds of local revenue-raising powers are precluded for home rule units, and left to the General Assembly and the unforeseeable vicissitudes of the future. The door is closed, but it is not locked."
Despite the limitations on their taxing powers, many new revenue-raising measures are open to home rule units. In its 1972 report, the Chicago Home Rule Commission listed some 20 different taxes which home rule would allow the city and other home rule municipalities to adopt. The Illinois Supreme Court, in line with its generally liberal series of opinions on home rule cases, has sustained a cigarette tax (separate from that allowed by state law), a parking tax, and an employers' expense tax or "head tax."
In regard to limitations on the power of home rule units to incur debt, several general restrictions are spelled out in section 6. Under section 6(d), no home rule unit may incur debt payable from ad valorem property tax receipts which matures later than 40 years from the time it is incurred.
Section 6(j) allows the General
Assembly by a simple majority vote to
limit the amount of debt which a home
rule county may incur. The Local
Government Committee's proposal
would have allowed the legislature to
require referendum approval of such
debt, but this was dropped by the con-
April 1975/Illinois Issues/105
vention's Committee on Style, Drafting, and Submission in the proposal it prepared for second reading. The point was not debated on the convention floor.
With respect to home rule municipalities, section 6(j) allows limitation of their debt (other than debt payable from ad valorem property tax receipts) only by a three-fifths vote of both houses o.fthe General Assembly. A number of legislative attempts to impose debt limitations on both home rule municipalities and home rule counties have been unsuccessful. In the present General Assembly, dominated by Democrats, it is highly unlikely that similar attempts would get very far.
Power to incur debt
Section 6(k) deals with the power of
home rule municipalities to incur debt
payable from ad valorem property tax
receipts without referendum approval.
The amount of such debt allowed by the
Constitution is determined by the size
of the municipality. Chicago may incur
debts up to 3 per cent of the value of its
taxable property (approximately $390
million) without referendum approval,
while Bryant — and all other home rule
municipalities under 25,000 population
— may incur only up to .5 per cent.
These figures constitute a "floor" below
which the General Assembly may not
legislate. This debt floor represents a
compromise at the Constitutional
Convention between strong supporters
of home rule who would have imposed
no limitation, leaving the power entirely
in the hands of the home rule
municipalities, on the one hand, and
those who would have left the
regulation of local debt entirely to the General
Assembly, on the other.
In general, the home rule units have
been cautious in the enactment of new
taxes and the incurrence of debt under
1970 Illinois Constitution (a) A County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. Other municipalities my elect by referendum to become home rule units. Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affirs including, but not limited to, the power to regulated for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.
(b) A home rule unit by referendum may elect not to be a home rule unit.
(c) If a home rule county ordinance conflicts with an ordiance of municipality, the municipal ordinance shall prevail within its jurisdiction.
(d) A home rule unit does not have the power (1) to incur debt payable from ad valorem property tax receipts maturing more than 40 years from the time it is incurred or (2) to defined and provide for the punishment of a felony.
(e) A home rule unit shall have only the power that the General Assembly may provide by law (1) to punish by imprisonment for more than six months or (2) to license for revenenue of impose taxes upon or measured by income or earning or upon occupations.
(f) 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, except that the form of government of cook County shall be subject to theprovisions of Section 3 of this Article. 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. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.
(g) The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (1) of this Section.
(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or fuction specified in subsection (1) of this Section.
(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive.
(j) The General Assembly may limit by law the amount of debt which home rule counties may incur and may limit by law approved by three-fifths of the members elected to each house the amount of debt, other than debt payable from ad valorem property tax receipts, which home rule municipalities may incur.
(k) The General Assembly may limit by law the amount and require referendum approval of debt to be incurred by home rule municipalities, payable from ad valorem property tax receipts, only in excess of the following percentages of the assessed value of its taxable perperty: (1) if tis population is 500,000 or more, an aggregate of three percent; (2) if tis population is more than 25,000 and less than 500,000, an aggregate of one percent; and (3) if its population is 25,000 or less, an aggregate of one-half percent. Indebtedness which is outstanding on the effective date of this Constitution or which is thereafter approved by referendum or assumed from another unit of local government shall not be included in the foregoing percentage amount.
(l) The General Assembly may not deny or limit the power of home rule units (1) to make local improvements by special assessment and to exercise this power jointly with other counties and municipalities, and other classes of units of local government having that power on the effective date of this Constitution unless that power is subsequently denied by law to any such other units of local government or (2) to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision os special services to those areas and for the payment of debt incurred in order to provide those special services.
(m) Power and function of home rule units shall be construed liberally. 106 /Illinois Issues/April 1975
Article VII, Local Government
Section 6. Powers of home rule units
home rule. Apparently this attitude,
encouraged by the Illinois Municipal
League, has paid off. Not one home
rule taxing measure considered by the
Illinois Supreme Court has been struck
down. General Assemsbly preemption
The other major limitation of home
rule powers is provided in the preemption
provisions, sections 6(g), (h), and
(i). "These sections attempt to spell out
... the power relationship between the
state and the home rule units ... to
reduce to a minimum the vast gray area
that has led to endless litigation in other
home rule states," according to
Parkhurst. Rather than specifying a
"laundry list" of areas of statewide
and/or local concern, as do the constitutions of many other home rule
states, the Illinois Constitution
attempts to distinguish state from local
concerns in terms of the exercise of
power.
The more conservative delegates on the Local Government Committee at the convention wanted to require only a simple majority of members elected to both houses of the General Assembly for all types of preemption, thus increasing legislative power over home rule units. Other delegates, led by Chicago Democrats, wanted to strengthen home rule units' powers by requiring an extraordinary three-fifths legislative majority for any preemptive action. Sections 6(g), (h), and (i) as passed, however, are close to the original Local Government Committee Proposal. To deny a home rule unit a power not being exercised by the state a three-fifths vote is required in both houses of the General Assembly (sec. 6(g)). A three-fifths vote is also required to deny or limit a taxing power other than those specified in section 6(e), discussed above. For an area which the General Assembly considers to be of statewide concern and over which it wishes the state to have exclusive jurisdiction, only a simple majority vote is required (sec. 6(h)). The same requirement holds for the legislature to declare a concurrent exercise of a power by the state and the home rule units (sec. 6(i)).
The convention rejected a majority committee proposal which would have allowed the General Assembly by simple majority vote to provide standards and procedures for the exercise of home rule powers and the performance of home rule functions. There was much confusion as to the meaning of "standards and procedures," extensively discussed on ail three readings of the local government article. Subsequently, several pieces of legislation have been passed under section 6(i) which would have been more logical "standards and procedures" preemptions. For example, p.A. 78-448 (///. Rev. Stat.. 1973, ch. 102, sec. 46) adds to the Open Meetings Act the statement that the act's provisions constitute minimum requirements for home rule units, although a home rule unit may prescribe more stringent requirements for itself.
Section 6(m) calls for liberal construction of home rule powers. At the time of the convention this section was viewed as an essentially hortatory statement, but in its home rule decisions the Illinois Supreme Court appears to have taken 6(m) literally. Most home rule decisions have indeed been liberal, and several have gone beyond the intentions of even the most fervent advocates of home rule at the convention. Although the courts and the General Assembly will undoubtedly continue to interpret and shape the home rule provisions of the Constitution, it seems clear that to date the broad powers allotted to home rule units have not' been seriously limited. ¯
As reported in the March issue of Illinois Issues, ISEA directors voted without dissent last July to join the 550,000-member international. The directors indicated that the affiliation was to give the small—and previously independent—ISEA the strength to compete with unions for new members and deal with Gov. Dan Walker's executive order allowing public employees under his jurisdiction to bargain collectively.
Officials of the ISEA say they voted February 8 to disaffiliate because "the international's interests and ours were not consistent with our endeavors in Illinois."
The ties between the Service Employees International and Teamsters unions (both are parts of the AFL-CTO) were apparently stronger than ISEA officials believed. One ISEA official said the international had attempted to get the association to tone down its efforts to enlist memberships from among workers in the Department of Transportation's maintenance section. The Teamsters had been named historical bargaining agent for the department, and the ISEA has vigorously challenged that.
"The SEIU balked at our competition with the Teamsters," the high- ranking ISEA official said. "As a result of our work in the Department of Transportation, they attempted to withdraw our petitions from the Office of Collective Bargaining." The Office of Collective Bargaining is responsible for determining appropriate bargaining agents for employees under the governor's executive order.
"We thought this was in direct violation of our contract with the International," the ISEA source said.
The ISEA's contract with the international permitted disaffiliation within 18 months after its initiation.˛
April 1975/Illinois Issues/107