COMMENTS THOMAS W. KELTY, Chief Counsel, Illinois Municipal League

ONE YEAR DOWN THE SLIPPERY SLOPE

Law school professors are sometimes fond of describing lines of case decisions to their students in terms of a "slippery slope" theory. According to the theory, once the erosion of a right is begun by a particular decision, that right falls down along a slippery slope until it no longer exists or until a contrary decision is made to restore the right to its previous position. Many times this erosion occurs slowly, in fact so slowly that the erosion goes without notice until the right is gone. Home rule municipalities in Illinois are becoming victims of the slippery slope theory with respect to their home rule powers in the area of matters of "statewide concern." The oddity about the erosion that is occurring in Illinois is that, although it began in an Illinois Supreme Court case, that decision was not even based upon Illinois law.

It has been almost one year since the decision of the Illinois Supreme Court in People ex rel. Bernardi v. City of Highland Park, 121 Ill. 2d 1, 520 N.E.2d 316, 117, Ill. Dec. 155 (1988). This case has been discussed in this column twice before (January and March, 1988) but it deserves revisitation again in another light that considers another of the gaping holes in the rationale applied by Justice Seymour Simon in his majority opinion.

The opinion in Bernardi pushed powers granted to home rule municipalities by Section 6 of Article VII of the Illinois Constitution off the top of the slippery slope. The long and painful slide down that hill has begun by the use of the holding in Bernardi and other home rule cases. In those cases, counsel opposing the exercise of home rule powers triumphantly display Bernardi as a shining example of the Illinois Supreme Court's position on the exercise of home rule powers. Seldom do these attorneys critically analyze Justice Simon's opinion, nor do they compare it to the clear logical reasoning of Justice Miller's dissent in the case. For example, in the case of Village of Dolton v. CSX Transportation, 1st App. Dist. No. 88-1153, the defendant railroads are challenging the implementation of a Grade Crossing Obstruction Ordinance passed by the Village of Dolton in the exercise of its home rule powers. In the brief of the defendants, Bernardi is called a "key decision" and states that Bernardi demonstrates "that the mere incantation of local problems will not justify the assertion of home rule powers . . . notwithstanding the local concerns, the courts held that home rule units could not address them by regulating fields traditionally left to state or federal control." The position of the defendants in Dolton does not consider the underlying rationale that cause out-of-state law to result in the Bernardi decision.

Since the adoption of the Constitution of the State of Illinois of 1970, Illinois Courts have considered a variety of cases disputing the applicability of home rule powers to varied factual situations. From the decisions of these cases, a three-pronged test has evolved which is applicable and appropriate to an analysis of home rule power. In People's Gas, Light & Coke Company v. City of Chicago, 125 Ill. App. 3d 95, 465 N.E.2d 603, 80 Ill. Dec. 491 (1st App. Dist. 1984) the First Division of the First District Appellate Court summarized this test. According to the court,

"First, it must be determined whether the disputed exercise of local government power falls within the scope of home rule powers contemplated by section 6(a). The main restriction contained therein requires that the unit of government must be acting in an area "pertaining to its government and affairs." If the local governmental unit is acting in an area "pertaining to its government and affairs," then it must be determined

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whether the legislature has preempted this area of otherwise valid home rule power by (1) "specifically" limiting local exercise or (2) "specifically" declaring the State's exercise to be exclusive. If the legislature has not taken such "specific" action, it must then be determined what the proper relationship is between the local ordinance and any State legislative acts in the same area. (People's, 80 Ill. Dec. 491, 493-494.)

The first and third prongs of the People's test are the prongs which consider the "field" of regulation in which a home rule municipality exercises its powers. Whether a matter sought to be regulated pertains to the "government and affairs" of a unit of local government and whether the field of regulation has been occupied by the State in an exclusive fashion are critical inquiries into the analysis of a home rule issue that can, if misdefined, significantly alter the outcome of the action. It is Justice Simon's misdefining of the field that permitted the decision in Bernardi to spring forth.

According to Justice Simon,

"[t]he 'field' in which Highland Park has regulated its decision to suspend the prevailing wage law is the promotion of a favorable labor climate through a comprehensive scheme of governmental intervention in the workplace. The prevailing wage law falls within that field since it both mitigates against an impoverished work force and 'support[s] the integrity of the collective bargaining process by preventing the undercutting of employee wages in the private construction sector' (State ex rel. Evans v. Moore (1982), 69 Ohio St. 2d 88, 91, 431 N.E.2d 311, 313)."

A review of the case cited by Justice Simon illustrates the distinguishable characteristics between Ohio municipal home rule powers and Illinois home rule powers that results in the constraining of Illinois home rule powers that occurred.

About the only similarity between the Evans case from Ohio and the Bernardi case is that a home rule municipality of each refused to enforce the provisions of a prevailing wage law. Neither the constitutional grant of home rule power or the development of legal principles on which home rule cases are decided bears any relationship or similarity in the two states.

The "self government" provision of the Ohio Constitution exists in one sentence. Section 3 of Article XVIII states:

"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

This provision contrasts with the detail, specificity and boundaries of Article XII, Section 6 of the Illinois Constitution. While the Ohio provision acts as little more than a general grant of power which is still shackled by Dillon's Rule, Illinois grants to its municipalities the power to operate unfettered by Dillon's Rule and concurrently with the State in all areas which have not been pre-empted by action of the General Assembly. Therefore, the difference in municipal powers alone renders the Evans case inapposite for application to a preemption question in Illinois.

The development of case law in the two states has been similarly divergent. Once again, the Ohio principle with respect to statewide concern is simple and expansive. According to the Evans court, a municipality may not infringe on matters of local and statewide concern. Although this seems to be the principle applied by Justice Simon, it just isn't that simple.

A consideration of prior decisions which scrutinize "statewide concern" arguments discloses that in each situation Illinois courts have engaged in a detailed factual analysis in reaching their conclusions regarding statewide concerns. This analysis has occurred in the areas of environmental control, regulation of liquor licensing, enforcement of police ordinances, regulation of outdoor advertising and others.

Environmental control is probably one of the clearest areas of statewide concern considered in this context. However, Illinois courts have chosen not to exclude home rule municipalities from concurrent regulation in the field. Uniformly, Illinois courts, including the Illinois Supreme Court, have required that home rule municipalities wishing to exercise concurrent control do so in a manner that is consistent with state statutes and does not fall below minimum standards required by the State in its legislative enactments. (See Cook County v. John Sexton Contractors Company, 75 Ill. 2d 494, 389 N.E.2d 553, 27 Ill. Dec. 489 (1979), City of Chicago v. Pollution Control Board, 59 Ill. 2d 484, 322 N.E.2d 11 (1977) and Carlson v. Briceland, 61 Ill. App, 3d 247, 377 N.E.2d 1138, 18 Ill. Dec. 502 (1st Dist. App. 1978), remanded 75 Ill. 2d 589,401 N.E.2d 1390, 36 Ill. Dec. 956 (1980).) In the control of the sale of alcoholic

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beverages, Illinois courts have similarly held that both the State and home rule municipalities may coexist in an area of high State regulation. In fact, ordinances establishing regulations which are more restrictive than those provided for by the Liquor Control Act (cite) have been upheld as valid exercises of home rule power. (See Illinois Liquor Control Commission v. City of Joliet, 26 Ill. App. 3d 27, 324 N.E.2d 453 (3rd App. Dist. 1975), Illinois Liquor Control Commission v. Calumet City, 28 Ill. App. 3d 279,328 N.E.2d 153 (1st App. Dist. 1975) and Eastern Enterprises, Inc. v. Illinois Liquor Control Commission, 114 III. App. 3d 855, 449 N.E.2d 1013, 70 Ill. Dec. 666 (3rd App. Dist. 1983).)

In the area of criminal offenses the ability of a home rule municipality to impose fines different than that provided for by State statute has been upheld in the case of City of Springfield v. Ushman, 71 Ill. App. 3d 112. 388 N.E.2d 1357, 27 Ill. Dec. 308 (4th App. Dist. 1979). In that case, the defendants were found guilty of a violation of a municipal ordinance which provided for a fine in excess of that provided for in the Unified Code of Corrections (Ill. Rev. Stat. 1987, Ch. 38, Paras. 1001-1 et seq.). The Fourth District Appellate Court upheld the power of a municipality to impose a more restrictive standard in the punishment of certain violations based upon an exercise of home rule power. Similarly, the Attorney General has opined that a home rule municipality may legislate concurrently with the State in criminal matters. In Opinion S-1186, November 22, 1976, Attorney General William Scott acknowledged the power of a home rule municipality to legislate concurrently with the State in an area predominately occupied by the State. The only limitation of that opinion was that such regulation must be consistent with the State regulation.

Finally, the field of regulation of outdoor advertising is one that presents both a state and federal statutory scheme of regulation, but the Highway Advertising Control Act (Ill. Rev. Stat., 1987, Ch. 121, Par. 501 et seq.) has provided an exemption for local regulation. Judicial interpretation of that statutory scheme has resulted in a finding that not only may home rule units adopt a more restrictive scheme but non-home rule units may act similarly. In Dingeman Advertising, Inc. v. Village of Mt. Zion, 166 Ill. App. 3d 70, 519 N.E.2d 504, 116 Ill. Dec. 612 (4th App. Dist. 1987), appeal denied, 1987, 116 Ill. 2d 552, 113 Ill. Dec. 296, 515 N.E.2d 105 the Appellate Court upheld a more restrictive regulatory scheme adopted by a non-home rule municipality then that provided for in the Highway Advertising Control Act. The same statewide concern issue was litigated in a home rule context in the case of National Advertising Company v. Village of Downers Grove, 166 Ill. App. 3d 58, 519 N.E.2d 502, 116 Ill. Dec. 610 (2nd App. Dist. 1988) which was affirmed based on Dingeman.

Each of the above cited actions clearly establishes the principle in Illinois that regulation by the State through statutory control does not automatically preempt action by local units of government. Contrary to the Ohio case, it is possible for a municipality to regulate in a more restrictive fashion than the State statute provides.

The decision in Bernardi may be in concert with Ohio law but it is clearly not in concert with Illinois law nor is it in the mainstream of the constitutional decisions predating Bernardi. It is exactly this kind of decision that starts a long slide down a painful slippery slope. •

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