By STEPHANIE COLE
Home rule in Illinois: No. 2. The Supreme Court's decisions
THE ILLINOIS Constitution directs that a "liberal" construction be given to the home rule section, and Illinois Supreme Court decisions have adhered generally to this directive. Examples are found in cases upholding Chicago and Cook County tax ordinances as well as in cases changing the structure of home rule governments.
In drafting the 1970 Illinois Constitution, delegates to the Sixth Illinois Constitutional Convention recognized the important role which state courts would play in interpreting controversial sections. This was especially true of the innovative home rule provisions—section 6 of Article VII, the local government article. Many cases involving questions raised by the new Constitution have been decided by the Illinois Supreme Court. Nineteen of these cases relate to home rule. No other provision of the new Constitution has resulted in such a large amount of litigation. Some home rule cases have been disposed of at the circuit or appellate court levels, while others are being appealed to the Supreme Court.
Not all 19 cases of the Supreme Court cases dealing with home rule are discussed here, but citations and brief descriptions of each case are given on the next page.
Members of the convention's Local Government Committee and other delegates were concerned that home rule powers not be interpreted restrictively, as they have been in other states. Consequently, they included in the local government article an essentially hortatory statement, section 6(m), intended as a guidance to the courts. This section states, "Powers and functions of home rule units shall be construed liberally."
At a Local Government Committee reunion meeting held December 7, 1974, in conjunction with the celebration of the fifth anniversary of the convening of the convention, committee Vice Chairman Philip Carey noted, "I'm particularly pleased with the way the courts have treated those questions that have come before them, I think in every instance I have seen. Looking at the various opinions, it appears to me that the courts have carefully considered what we said in the debates and have placed particular emphasis on that portion of the Constitution that says it should be liberally construed in favor of home rule." Carey, a Chicago attorney, is now chairman of the Cook County Home Rule Study Commission.
Of the 19 home rule decisions rendered by the Illinois Supreme Court, more than three-quarters can be described as liberal interpretations. Even in some decisions which can be described as conservative, the court has been mindful of the exhortation of section 6(m). The section has been cited explicitly in five home rule cases—S. Bloom, Inc. v. Korshak, City of Evanston v. County of Cook, People ex rel. City of Salem v. McMackin. Paper Supply Co. v. City of Chicago, and City of Des Plaines v. Metropolitan Sanitary District of Chicago.
For example, in Bloom, the first home rule case to be considered by the Supreme Court, the opinion stated, "The powers of home rule units are to be liberally construed (section 6 (m)), and it would be unreasonable to read limitations . . . and thus contradict the broad authority given'home rule units ... ." In a more recent decision, Paper Supply, the court noted, "Section 6(m) requires that we resolve the question in favor of a broad rather than a narrow interpretation of the taxing power of the city [Chicago]."
Home rule taxing powers upheld
The Constitution grants home rule units broad power to tax in section 6(a) . of the local government article; several limitations on this power are set forth in section 6(e). Six of the home rule cases which have come before the Illinois Supreme Court concerned the power of home rule units to enact various kinds of taxing measures. The defendant in all of these cases has been either Chicago or Cook County—the largest home rule municipality and the only home rule county in the state.
In Bloom, the Supreme Court upheld Chicago's cigarette tax ordinance, which imposes a five cents a package tax on the purchase of cigarettes, with the incidence of the tax on the buyer. The court ruled that the cigarette tax is a privilege or use tax, not an occupation tax upon those who sell cigarettes, which would be forbidden under section 6(e). The court commented that privilege or use taxes fall within home rule taxing authority.
Similarly, in Jacobs v. City of Chicago, the city's parking tax ordinance was challenged. The parking tax is imposed at the rate of 15 cents for each 24-hour period of parking in any city lot or garage. The plaintiffs pointed to provisions in the ordinance allowing the mayor to suspend or revoke the licenses of parking lot operators who fail to collect or remit the tax, and claimed that the tax was in reality a license for revenue, which is also forbidden under section 6(e). In upholding the tax, the court, citing Bloom, stated that the penalties for violation do not mean that the tax is a disguised form of licensing for revenue, but rather that they insure the integrity of the collection process.
142 /Illinois Issues/May 1975
A case by case analysis of the court decisions affecting home rule in Illinois. Generally, the Supreme Court has liberally construed the powers and functions of home rule units
A third Chicago tax upheld by the court—in Rozner v. Korshak—was a wheel tax license. The fees imposed by the city wheel tax differ from those which any municipality—home rule or non-home rule—can collect under state statute. In addition, the ordinance authorizing the wheel tax license allows virtually unlimited use of proceeds from the tax, which is not the case with proceeds from those local wheel taxes authorized by state law. The court held that, despite its label as a "wheel tax license," the tax is not a license for revenue (proscribed by section 6(e)):
"The ordinance is frankly a taxing measure and ... is a proper exercise of the city's home rule power to tax."
A Cook County wheel tax applying only to vehicles owned by residents in the unincorporated areas of the county was upheld in Gilligan v. Korzen. Citing its opinion in Rozner, the court stated once again that the ordinance imposing the tax is "frankly a taxing measure." The court upheld the county's right to distinguish between residents living in incorporated and unincorporated areas, comparing it to the power of the General Assembly to make similar classifications.
Cook County was also the defendant in City of Evanston v. County of Cook, which involved the county's tax on retail purchases of new motor vehicles within its territory. Similar taxes had also been adopted by Evanston and several other home rule municipalities within the county. In arguing against imposition of the county tax within their boundaries, the municipalities cited section 6(c) of the home rule provisions: "If a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction." The court held, however, that section 6(c) does not establish a system of preemption of home rule county ordinances by municipal ordinances. Rather, section 6(c) is meant to resolve conflicts and inconsistencies. According to the court, both the county and the municipal ordinances were valid; both were exercises of a concurrent power. Although their taxes were upheld in this decision, after it was handed down, Evanston and the other municipalities did not attempt to collect their taxes. Potential buyers of motor vehicles would hardly be likely to make their purchases where they would have to pay municipal as well as county tax
In Paper Supply, the Supreme Court upheld Chicago's employers' expense tax — usually referred to as a "head tax." The tax is levied on all local employers of 15 or more workers at the rate of $3 a month for each full-time employee. A number of constitutional objections to the head tax were raised in this case, but the most important issue — as in Bloom — was whether the tax is an occupation tax. The court quoted at length from the constitutional convention debates on section 6(e), and noted that delegates did not define the meaning of an occupation tax. Therefore, because of the liberal construction of home rule powers, and because the General Assembly has the potential right under section 6(g) to preempt home rule units' right to impose a tax such as the head tax, but has not taken any preemptive action in this area, the court upheld the tax.
Home rule power to incur debt
The major case involving the power of home rule units to incur debt is Kanellos v. County of Cook. The Supreme Court upheld a resolution of the Cook County Board providing for the issuance of $10 million in general obligation bonds without prior approval by the county's voters in a referendum. Similar bonds have been issued subsequently by more than 15 home rule municipalities.
In Kanellos, the court noted the (continue on page 144)
Home rule cases decided by the Illinois Supreme Court
S. Bloom. Inc. v. Korshak, 52 lit. 2d 56, 284 N.E.2d 257 (1972). Upheld Chicago cigarette tax ordinance.
Kanellos v. County of Cook, 53 111. 2d 161, 290 N.E.2d 240 (1972). Upheld authorization of $10 million in general obligation bonds by Cook County without referendum approval.
City of Evanston r. County of Cook, 53 111. 2d 312. 291 N.E.2d 823 (1972): Upheld similar Cook County and municipal ordinances levying taxes on the retail sale of new motor vehicles.
People ex. re/. City o/ Salem v. Mc.Mackin, 53 III. 2(1347. 291 N.E:2d807 (1972). Held that home rule municipalities may adopt provisions of the state Industrial Project Revenue Bond Act, despite a provision in the act that it does not apply to home rule municipalities.
City of Danville v. Hartshorn. 53 III. 2d 399. 292 N.E.2d 382 (1973). Held that rules of criminal procedure apply to penal ordinances of home rule units.
Jacobs v. City of Chicago. 53 III. 2d 421. 292 N.E.2d 401 (1973). Upheld Chicago parking tax ordinance.
Bridgman v. Korzen. 54 111. 2d 74, 295 N.E. 2d 9 (1973). Struck down Cook County ordinance providing for payment of real estate taxes in four rather than two installments and accelerating the payment dates.
Oak Park Federal Savings and Loan Association v. Village of Oak Park, 54 111. 2d 200, 296 N.E.2d 344 (I973). Struck down Oak Park ordinances for special service areas, stating that enabling General Assembly legislation was required for such ordinances to be enacted.
People ex rel. Hanrahan v. Beck. 54 III. 2d 561, 301 N.E.2d 281 (I973). Upheld Cook County ordinance creating the appointive office of county comptroller and transferring to this new office some of the powers of the elected county clerk.
Rozner v. Korshak, 55 111. 2d 430, 303 N.E.2d 389
City of Chicago v. Mover, 56 III. 2d 366, 308 N.E.2d60l (I974). Allowed a "necessity" defense to violation of a penal ordinance of a home rule unit. but indicated that violations of such ordinances will not be treated as violations of penal statutes.
Gilligan v. Kor:en. 56 111. 2d 387, 308 N.E.2d 613 Clarke v.. Village o/ Arlington Heights, 57 III. 2d 50, 309 N.E.2d 576 (1974). Upheld Arlington Heights ordinance making the village clerk an appointive office and increasing the number of members ol the village board of trustees from six to eight.
Peters v. City of Springfield, 57 III. 2d 142, 311 N.E.2d 107 ("I974). Upheld Springfield ordinance reducing the mandatory retirement age of city policemen and firemen from 63 to 60.
Fuehrmeyer v. Cilv of Chicago, 57 111. 2d 193, 311 N.E.2d 116 (1974). Held the state occupational licensing act (H.B. 3636) to be unconstitutional.
Paper Supply Co. v. Cilv of Chicago, 57 111. 2d 553, 317 N.E.2d 3 (1974). Upheld Chicago employers" expense tax ("head tax") ordinance but struck down a severable provision of the ordinance incorporating the state Administrative Review Act.
Cunimings v. Dairy, 58 III. 2d I, 317 N.E.2d 22 (1974). Citing Paper Supply, struck down a provision in Chicago fair housing ordinance incorporating the state Administrative Review Act. City of Des Plaines v. Metropolitan Sanitary District of Greater Chicago, 59 III. 2d 29, 319 N.E,2d 9 (1974). Held that the 1970 Illinois Constitution and its home rule provisions did not essentially change the facts of a prior case where the city claimed zoning powers over the district on land within city boundaries: ruled again in favor of the district.
City of Chicago v. Pollution Control Board, 59 III. 2d 484.322 N.E.2d II (1974). Held that Chicago is subject to the slate Environmental Protection Act and to the jurisdiction of the Pollution Control Board.
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The court seemed to be saying that if the Constitution states that a certain subject is of state concern—as it does for the environment—then state power in this area is supreme
absence of a referendum requirement for home rule counties in section 6(j). This was in contrast, the court said, to the authority granted the General Assembly in section 6(k) to require referendum approval of a home rule municipality's debt above a certain percentage of the assessed valuation of the municipality's taxable property, the percentage varying according to the municipality's population. The court pointed again to section 6(g) and noted that the General Assembly has the power to impose a referendum requirement upon home rule counties under the section. No legislative action of this kind has been taken thus far.
Broad impact of Kanellos
The Kanellos case has had a much wider impact than simply affirming the right of home rule units to issue non-referendum general obligation bonds. In deciding this case, the Supreme Court stated that a state law enacted before July 1, 1971, the effective date of the new Constitution, is invalid if a home rule unit takes other action allowed under its new powers. The state law relating to counties, in a provision enacted prior to the new Constitution, requires referendum approval before a county can incur debt. Under section 9 of the Transition Schedule of the Constitution, only laws not contrary to or inconsistent with the new Constitution remain in force. Therefore, the court held, "This statute is inapplicable as applied to a home-rule county. It was enacted prior to and not in anticipation of the Constitution of 1970 which introduced the concepts of home rule and the related limitation of sections 6(g) and 6(h). Such considerations were totally foreign in the contemplation of legislation adopted prior to the 1970 Constitution. The statute is therefore inconsistent with the provisions of section 6(g) and the Transition Schedule."
The concept that pre-existing state laws are inapplicable to home rule unit enactments unless the enactments are otherwise limited by legislative preemption was subsequently applied by the court in such cases as People ex rel. Hanrahan v. Beck, Peters v. City of Springfield, and Clarke v. Village of Arlington Heights. In Beck, the court was confronted with the question of whether Cook County could create the new, appointive office of comptroller and transfer to it powers and functions previously exercised by the elected county clerk as an ex officio comptroller. The court ruled that under home rule Cook County "has authority to transfer powers, duties and functions among county officers even to the extent that such exercise conflicts with a statute enacted prior to the adoption of the 1970 Constitution." Although section 4(c) of the local government article makes an elected county clerk mandatory for all counties—unless eliminated by countywide referendum—a home rule county may transfer the clerk's powers, duties, and functions to other officers. The court viewed the creation of new offices by a home rule county as a legally proper way to "deal with the myriad complex problems of local government." The court noted that there have been no General Assembly enactments which would limit the power exercised by Cook County in creating the office of comptroller.
In the Peters case, the Supreme Court dealt with Springfield's action, taken under home rule, of reducing the mandatory retirement age for its firemen and policemen from 63 to 60. In defending this action, the city was joined by the Illinois Municipal League and the city of Chicago as friends of the court. Referring to "the doctrine of Kanellos and Beck," the court ruled that Springfield was acting within its home rule powers in reducing the mandatory retirement age. Although a referendum is required to change the form of government of a home rule municipality, the court also held that the civil service system of a municipality is not its form of government, and that changes in the system need not be submitted to a referendum.
The Clarke case concerned the power of Arlington Heights to pass ordinances providing that the number of trustees on the village board be increased from six to eight and that the office of village clerk be made an appointive rather than an elective office. Both changes received referendum approval; both differ from provisions of the state Municipal Code. The court approved these changes: "As Kanellos and Beck made clear, a home rule unit may preempt statutory provisions enacted prior to adoption of our present Constitution, as was accomplished in the present instance."
In a recent, puzzling case. City of Chicago v. Pollution Control Board (summarized in Illinois Issues, Feb. 1975, p. 60), the court held that the state Environmental Protection Act applies to Chicago as a home rule municipality. The court stated that local environmental protection programs must conform with the minimum standards set forth in the act. The act was passed before the effective date of the new Constitution. The environment was of special concern at "Con Con," however, and the court seemed to be saying that if the Constitution states that a certain subject is of state concern — as it does for the environment — then state power in this area is supreme. Until more cases are decided it is not possible to tell whether the court has changed the position on preexisting state statutes and the need for positive legislative action which it adopted in Kanellos.
Licensing and regulation
A high proportion of the home rule ordinances enacted so far concern licensing and regulation, but the Supreme Court has not ruled on challenges to any of these actions. In Fuehrmeyer v. City of Chicago, the court did rule on the occupational licensing act (House Bill 3636), passed by the 77th General Assembly. In ruling on challenges to H.B. 3636, the Supreme Court did not consider the numerous questions on the interrelated preemption provisions — section 6(g), (h), and (i). Rather, the court found the occupational licensing act to be unconstitutional on other grounds: it contained more than one subject and improperly attempted to amend or repeal sections in three of the thirty acts referred to. The General Assembly's response to the Fuehrmeyer ruling was to pass in June 1974 a series of similar bills, each of which deals with only one subject. These bills and others passed as the apparent result of Supreme Court rulings will be discussed in the next article in this series.
144/Illinois Issues/May1975