Home rule in Illinois: No. 3. General Assembly action

1970 Illinois Constitution Article VII — Local Government
Section 6. Powers of Home Rule Units
(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 function 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.

ONE OF THE most difficult problems faced by the Constitutional Convention was to define how the General Assembly could and could not limit home rule powers. "Even the most determined proponents of home rule recognize that many matters of concern to local governments should be left to the determination of the state legislature," the Local Government Committee noted in its report.

The committee report emphasized that the power of state legislative control should be preserved over most, if not all, matters of local concern. The committee also recognized, however, that "there is a great danger of undue restriction of home rule powers if the legislature is authorized to act on all matters affecting local governments."

The committee tried to avoid the kinds of problems that have resulted from home rule provisions in other states, where the courts are the arbiters in distinguishing local from state concerns. In most cases the courts have decided in favor of the state. The Illinois provisions proposed by the committee (and subsequently ratified by the full convention and the state electorate) place few specific limitations on home rule powers, but leave the door open for the General Assembly to limit, or even take away entirely, many local powers. The mechanism for denial and limitation — termed preemption — appears in sections 6(g), (h), and (i) of the local government article.

These sections make it more difficult for the General Assembly to deny or limit the exercise of a home rule power than to decide to exercise this power itself. A three-fifths vote of the members elected to both the Senate and the House of Representatives is required for denial of limitation of a home rule power (sec. 6 (g)), but only a majority vote is required for the legislature to declare a power exclusive to the state (Sec. 6 (h)). In the absence of specific General Assembly action, home rule units may exercise powers concurrently with the state (sec. 6 (i)).

Home rule revenue powers
Home rule revenue powers are given special treatment in the Constitution. In its report, the Local Government Committee declared that the powers to tax and to incur debt "are essential if home rule is to enable counties and municipalities to perform the functions demanded of them in this increasingly complex and urbanized world. In the simplest terms, urban areas need more money if they are to survive and grow .... The balancing of local automony against state sovereignty is most difficult and delicate in the realm of revenue. Home rule is a mere skeleton without flesh and muscle if revenue powers are lacking or can be taken away by the legislature." The committee's solution was to require the General Assembly to muster a three-fifths vote before it can deny or limit any home rule taxing power. Clearly, the legislature would take such preemptive action only in the most pressing circumstances.

An example of an unsuccessful attempt at preemption was House Bill 4680 introduced in the 77th General Assembly by downstate Republican C. L. McCormick. The bill was an attempt to freeze local property taxes at 1972 levels until at least January 1, 1975. The bill received a majority but not the required three-fifths vote in the House, whereupon Rep. McCormick tabled his proposal.

General Assembly authorization
In. addition to permitting the legislature to deny or limit home rule powers, the Constitution gives the General Assembly the authority to permit governmental units to exercise

204 /Illinois Issues/July 1975

THIRD ARTICLE IN A SERIES OF FOUR BY STEPHANIE COLE

There are few specific limitations on home rule powers in Illinois, but the Constitution leaves the door open for the General Assembly to limit, or even take away entirely, many local powers. It's called 'preemption'

various powers which are otherwise specifically forbidden. Without such authorization, a home rule unit may not punish by imprisonment for more than six months; it may not license for revenue; and it may not impose income, earnings, or occupation taxes. Since the new Constitution went into effect (July 1, 1971), the General Assembly has not moved to extend any of these powers to home rule units.

Three-fifths preemption
Relatively little preemptive legislation has been passed in the four years since the new Constitution went into effect. At the Illinois Assembly on Home Rule (an April 1973 conference sponsored by the Institute of Government and Public Affairs, University of Illinois), participants adopted this finding: "The assembly recognizes that there are areas of legitimate statewide concern which would justify preemption, limitation, denial, or concurrent exercise of local governmental power. However, the state should not act in any such areas in the absence of a compelling state need." The legislature appears to have acted in accordance with this statement. While many preemptive bills have been introduced, only a few have been enacted into law.

Only two bills have been passed under the extraordinary voting requirements of section 6(g). The first such bill (Senate Bill 27, 3rd special session), passed in December 1973, established a coordinated Regional Transportation Authority (RTA) for the six northeastern Illinois counties (Illinois Revised Statutes, 1974 Supplement, chapter 111 2/3 section 701.01 ff). Home rule units and all other local governments in the six-county region, which includes Cook County and 52 of I the 77 home rule municipalities, may not exercise any of the powers delegated to the RTA governing board. These powers include the acquisition of construction of any public transportation agency, eminent domain over property to be acquired by the RTA, and the imposition of a number of taxes — including a motor fuel tax, a parking tax, and a motor vehicle use tax.

The second piece of legislation passed under section 6(g) was S.B. 1520, passed in June 1974 (Ill. Rev. Stat., 1974 Supplement, ch. 73, sec. 614.1). S.B. 1520 preempts home rule authority to license and regulate insurance brokers: "The fees, charges and taxes provided for [in the bill] shall ... be in lieu of all license fees or privilege or occupation taxes levied or assessed by any home rule unit and [the tax section of the act] is declared to be a denial or limitation of the powers of home rule units pursuant to paragraph (g) of Section 6 of Article VII of the Constitution of 1970." S.B. 1520 was one of a series of bills covering the licensing and regulation of various professions and occupations. The bills were intended to correct technical flaws in previous legislation which the Illinois Supreme Court found in the case Fuehrmeyer v. City of Chicago (57 111. 2d 199 [1974]).

The Fuehrmeyer case arose out of challenges to House Bill 3636, the occupational licensing act, passed by the 77th General Asembly. The legislature attempted, under the preemption provision of section 6(h), to declare exclusive to the state the power to register, license, and regulate more than 30 occupations listed in 30 other acts which were referred to in H.B. 3636. Included were such diverse occupations as architect, horseshoer, funeral director, and real estate broker. Much of the debate on H.B. 3636 centered on whether a simple majority vote (sec. 6 (h)) or a three-fifths vote (sec. 6(g)) was required. However, the court did not consider the question of how many votes were required in the Fuehrmeyer ruling. Similar questions arose in the legislature in its passage of the series of new bills, and a court test of these statutes may clarify when a three-fifths majority is necessary and when a simple majority will suffice.

It is interesting to note that not every bill passed by a three-fifths majority in 30th houses of the General Assembly will necessarily preempt a home rule power or function. For example, 15 of the 29 bills in the series of which S.B 1520 was a part received a three-fifths vote in both the Senate and the House. Only S.B. 1520 required the extraordinary majority, however, because it takes away a power which was already being exercised by home rule units. The presiding officers in both chambers ruled that 26 other bills in the series—including the 15 bills which ultimately received a three-fifths majority—required only a simple majority. (Two of the 29 bills in the series were not preemptive in nature.) In the case Rozner v. Korshak (55 111. 2d 430 [1973]) the Supreme Court indicated that not every bill passed by a three-fifths majority will affect home rule power. The court stated that inadvertent restrictions on home rule units' authority would be avoided if preemptive legislation were clearly labeled as such, but the court did not state that the legislature must label preemptive bills.

Home rule amendment
The General Assembly has adopted its own device for avoiding inadvertent preemption by attaching a "home rule amendment" to bills related to local government. The home rule amendment appears in various forms, but it usually states that a bill "is not a limit upon" or "does not apply to" the powers of home rule units. The amendment is added to bills which might be interpreted as preemptive but are not intended to be preemptive. The home rule amendment

July 1975/Illinois Issues/205

The General Assembly has adopted its own device for avoiding inadvertent preemption by attaching a 'home rule amendment' to bills relating to local government

appears more than 150 times in the 1973 edition of the Illinois Revised Statutes.

Other preemption
Not every preemptive bill contains a specific reference to sections 6(g) (h) or (i). For example, an early bill (S.B. 192, 77th General Assembly) states that the Illinois Rules of the Road are to be applied uniformly by the state throughout the state (Ill. Rev. Stat., 1973, ch. 95'/2, sees. 11-208.1 and 208.2). Although no constitutional citation is given, this act is an apparent example of preemption under section 6(h). The act's provisions "limit the authority of home rule units to adopt local police regulations inconsistent herewith . . . ." Many additional examples of unstated preemption are found in other legislative acts. For instance, S.B. 220 (78th General Assembly) amends the Health and Safety Act so that the act applies to "all employers engaged in any occupation, business, or enterprise in this State, and their employees . . . ." (Ill. Rev. Stat., 1973, ch. 48, sec. 137.2).

In the 78th General Assembly several preemptive acts, so labeled, were passed in addition to the RTA legislation and the series involving various occupations and professions. H.B. 1050, passed under section 6(i), declares that the provisions of the Open Meetings Act constitute minimum requirements for home rule units. A home rule unit may adopt more stringent requirements for itself (Ill. Rev. Stat., 1973, ch. 102, sec. 45). More stringent requirements than those prescribed by statute may also be enacted by home rule units under H.B. 1313, also passed under section 6(i). H.B. 1313 provides that state public notice requirements apply to home rule as well as non-home rule units (Ill. Rev. Stal., 1973, ch. 100, sec. 8.2).

Both section 6(h) and section 6(i) were invoked in the passage of another bill, H.B. 541, which provides for continued exclusive regulation by the state of electricity suppliers (Ill. Rev. Stat., 1973, ch. 111 2/3, sec. 2.1).

Two health-related preemptive bills were also passed in the 78th General Assembly: H.B. 2826 and S.B. 1609. The first, passed under section 6(h), amends the Dangerous Drugs Abuse Act by creating the Dangerous Drugs Commission, which is responsible for various programs to curb drug abuse enumerated in the act (Ill. Rev. Stat., 1973, ch. 91'/2, sec. 120.1 ff). The exclusive power of the state refers only to those powers and functions given the commission under H.B. 2826, not to the entire field of controlling drug abuse. The Illinois Health Facilities Planning Act, S.B. 1609, was also passed under section 6(h). The act establishes a state planning agency to develop standards, rules, and plans concerning health care facilities (Ill. Rev. Stat., 1973, ch. 111 1/2, sees. 1157-1167).

At Illinois Issues press time on May 30, the 79th General Assembly had not passed any preemptive legislation.

General Assembly response to Supreme Court rulings
As mentioned above, the 78th General Assembly passed a series of bills to regulate various occupations and professions. These bills dealt with almost the same fields covered by H.B. 3636 (77th General Assembly), which had been struck down by the Supreme Court in Fuehrmeyer because of several technical flaws.

The General Assembly has also responded directly to two other Supreme Court decisions. One of the first home rule cases to reach the court was Bridgman v. Korzen (54 111. 2d 74 [1973]), which concerned Cook County's attempt to use its home rule powers to provide for the payment of real estate taxes in four rather than the two installments provided by statute. The four-installment procedure would have allowed the county and other units of government located in its territory to save millions of dollars in tax anticipation warrants issued for purchases made before receipt of the tax payments. The Supreme Court, however, ruled that the collection of property taxes is not a power or function of Cook County government: "In the process of collecting and distributing tax monies the county acts both for itself and the other taxing bodies authorized to levy taxes on property within the county." Acting to rectify this situation, the 78th General Assembly established an accelerated billing system for real estate taxes in counties over one million population. Any county under three million population has the option to change to the accelerated schedule. The previous payment dates were May 1 and September 1; they are now March 1 and August 1 (Ill. Rev. Stat.. 1973, ch. 120, sec. 705).

Another direct General Assembly response to a Supreme Court decision concerned procedures for the establishment of special service areas. The 1970 Constitution grants counties and municipalities the power to levy taxes on designated areas within their jurisdictions to provide special services within these areas (Art. VII, secs. 6(1) and 7(6)). The Local Government Committee of the Constitutional Convention viewed the special service area provisions as a way to encourage flexibility in dealing with local government problems. No longer would local governments have to resort to special assessments or to tax everyone for a service to be provided to only part of its jurisdiction. The village of Oak Park was the first local government to attempt to utilize the special service area provision. The village wanted to employ existing statutory procedures to

206/Illinois Issues/July 1975

pay expenses connected with the construction and maintenance of a downtown shopping mall. In the case Oak Park Federal Savings and Loan Association v. Village of Oak Park (54 Ill. 2d 200 [1973]), several local banks challenged the village's actions. Because sections 6(1) and 7(6) include the phrase "in the manner provided by law," the supreme Court decided that enabling legislation was necessary before the special service area procedure could be employed. The General Assembly quickly passed legislation establishing be procedures (Ill. Rev. Stat., 1973, ch. 120, sec. 1301 ff). The legislation applies to non-home rule as well as home rule counties and municipalities.

Home rule procedural matters
Chapter 46 of the Illinois Revised Statutes, the Election Code, provides procedures in sections 28-4 and 28-5 for all local government referenda required under the local government article, including referenda on the question of whether to become or cease to be a home rule unit. Home rule referenda, which may be held in any municipality under 25,000 population, must be retgistered with the Secreatary of State. Seventeen successful and seven un-successful home rule referenda have been held to date. There have been no referenda on the question of ceasing to a home rule unit.

In the case of a municipality losing population and falling below 25,000 population, the General Assembly has provided that the "municipality shall continue to have the powers of a home rule unit until it elects by referendum not to be a home rule unit." If no such referendum is held, "the corporate authorities shall submit to the voters of the municipality at the next general election following such determination of population, in the manner provided by law, the proposition of whether the municipality shall elect not to be a home rule unit" (Ill. Rev. Stat., 1973, ch. 24, sec. 1-1-9). To date no home rule municipality over 25,000 population has fallen below that figure, and no referenda on ceasing to be a home rule unit have had to be held.

County home rule referenda are governed by the County Executive Act (Ill. Rev. Stat., 1973, ch. 34, sec. 301 ff). In order for a county to have home rule, it must have an elected chief executive officer. Only Cook County had such an officer prior to the new Constitution, and thus was the only county to qualify for automatic home rule status. Nine other counties tried to gain home rule status by putting the county executive question on the ballot in the March 1972 primary elections. (The nine included DeKalb, DuPage, Fulton, Kane, Lake, Lee, Peoria, St. Clair and Winnebago.) The proposition failed by wide margins in all nine of these counties, and Cook remains the sole home rule county. There has been some speculation that the General Assembly will amend the County Executive Act to allow a county to adopt home rule by majority vote of the county board. No such legislation has been introduced to date. 

SSU accredited
SANGAMON STATE University, Springfield, has been granted full accreditation and membership in the North Central Association of Colleges and Universities. SSU is a senior university offering bachelor's and master's degree programs to juniors, seniors and graduate students. The university opened in 1970.

Grand jury reports stupidity in State Fair
THE SANGAMON County Grand Jury ended a three-month investigation of the 1974 Illinois State Fair on April 4, 1975, by filing a report which contained no indictments but urged the attorney general to void two contracts involving more than $1 million. In a 13-point report, the Grand Jury blamed "stupidity and ignorance" of State Fair personnel for violations of the statute and recommended:

1. The State Fair Agency should buy copies of the statutes and keep them available for reference.

2. The agency should adopt and file with the secretary of state rules governing its organization and procedures.

3. The legislature should clarify the uses which may be made of the State Fair trust fund.

4. Open-ended contracts should be eliminated.

5. Contracts issued by the agency should be in writing and "written with care" (emphasis in original).

6. The legislature should pass the State Fair's appropriation bill by May 1 each year to eliminate the need for "frantic last-minute spending."

7. The agency should arrange for maintenance work on a year-around basis instead of on an emergency basis requiring "crash" programs and overtime.

8. The State Fair manager and other fair officers should prepare detailed reports for use by their successors. "It is ridiculous that there is so little continuity from one State Fair administration to the next."

9. Contracts for fees to the State Fair Agency should be worded so as to assure that the money goes to the fair. A $10,000 contribution made in August 1974 by Pabst Brewing Co. did not get to the agency until January 1975.

10. The attorney general should initiate action to void the State Fair contract with the H. W. Buecker Plumbing, Heating, and Air Conditioning Co. in 1974 and seek recovery of $825,000 paid under the contract.

11. The attorney general should also seek to void the contract with the Robert A. Williams Construction Co. for removal of manure; a bill of $261,000 has been presented under this contract but has not been paid.

12. The provisions of the Illinois Purchasing Act should be "strictly followed" by the fair agency in the future.

13. Copies of the report should be sent to the State Fair Agency and its advisory board, to the legislative appropriations committees, and to the attorney general.

C. Joseph Cavanaugh is state's attorney of Sangamon County. 

July 1975/Illinois Issues/207