The Buffalo
Grove Village
Board of
Trustees is engaged in a nasty, all-out battle
to enact a Recall Ordinance, for the purpose of being
able to get rid of recently elected Village Trustee
Lisa
Stone, who is wearing the white sweater in the
picture, below.
Trustee Stone is an independent voice who dares to
vigorously call into question Village Board policies and
proposals that she feels are not in the best interest of
the citizens of Buffalo Grove. The other trustees
aren't used to that level of dissent, so they want to
get rid of her, for that reason and because Lisa's
dynamic personality clashes with the sedate
personalities of everybody else on the team.
The smiling faces of Buffalo Grove Village President
Elliott Hartstein (seated),
the Board of Trustees, Village Clerk Jan Sirabian
(seated, right) and
Village Manager Bill Brimm (third from left), from a
happier time.
Photo from Village of
Buffalo Grove.
What the
proposed Recall Ordinance provides for, is a means
for removing from office, via a referendum, any village
elected official. The elected officials are the Village
President, the Village Trustees and the Village Clerk --
everybody pictured above except the Village Manager. If
the circulators of a recall petition were to obtain
the signatures of a certain minimum number of registered
voters, the Village Board would place on the ballot, at
the next election, a referendum, asking if a particular
elected official should be both removed from office and
barred from running for election, again, for the next
four years.
After reviewing every
aspect of the proposed ordinance and doing extensive
research, I found that the proposed ordinance
violates the
United States Constitution, the
Illinois Constitution and the
Illinois Election Code, which is the set of
state laws from the
Illinois Compiled Statutes that govern elections.
Two of the ways in which a referendum can be placed on a
ballot are, directly by citizens collecting enough
signatures on petitions, and by an ordinance passed by a
majority vote of a local government legislative body,
such as a village Board of Trustees.
According to the
proposed Recall ordinance, a Buffalo Grove Recall
Referendum would be placed on the ballot by an ordinance
by the Village Board, but only after a certain number of
signatures were obtained on a Recall Petition circulated
in the community.
A village Board of
Trustees, however, has the power to place up to
three referendum questions on the ballot of any
election, on their own. No registered voter petitions
are required for a village board to place a referendum
on the ballot. The board can do it all by itself,
regardless of whether petitions have been circulated or
filed with the Village Board.
Buffalo Grove Village Trustee Lisa Stone,
who is the target of the proposed Recall Ordinance.
Photo from Village
of Buffalo Grove.
The question, then, is
whether or not a village Board of Trustees can enact a
Recall Referendum ballot question ordinance that
would result in the punishment of a person, such as the
removal of one of the members of the Village Board
and/or a prohibition against that person running again
for elective office.
Article I, Section
10, of the
United States Constitution provides, in pertinent
part, that "No State shall pass any Bill of
Attainder." Constitutional provisions that apply to
States also apply to all local government within each
State, so Article I, Section 10, applies to
municipalities. There is a similar provision in Article
I, Section 9, of the Constitution, which bans Congress
from enacting any Bill of Attainder.
A Bill of Attainder is legislative punishment of a
person. The legislative punishment can be meted
out without a trial and, indeed, without the punished
person even being accused of doing anything wrong. This
is exactly what the Buffalo Grove Village Board is
seeking to do to Lisa because they don't like her.
Nobody has accused Lisa of engaging in
misconduct, nor doing anything illegal. Neither the
Recall Petitions nor the Recall Referendum question on
the ballot identify any cause for the recall being
requested.
Legislative punishment, without a trial and without
cause, used to be done in Europe to punish political
dissidents. One of the things that the founders of our
country sought to do, in creating our national
Constitution, was to ban Bills of Attainder. Any
punishment of a person by government should only be done
after a trial, in which it is alleged what a person
supposedly did wrong. This process is to be carried out
by a court of law (the judiciary), not a legislative
body.
A recall referendum that is created by
legislative ordinance -- as is the case with the
proposed Buffalo Grove Recall Ordinance -- is a form of
Bill of Attainder, because it is an attempt to punish
somebody by legislative action, without a trial
and without even a cause.
Since the proposed Buffalo Grove Recall Ordinance is
a Bill of Attainder, it is unconstitutional, in that it
violates the prohibition against Bills of Attainder
contained in Article I, Section 10, of the United States
Constitution.
This also means that other
Recall Ordinances in Illinois municipalities, such as
the recall ordinances in Arlington
Heights,
Mount Prospect and
Wheeling,
are also unconstitutional.
That leaves the question of whether the registered
voters of Buffalo Grove can initiate a Recall Referendum
on their own, by getting such a question placed on the
ballot themselves through a citizens' initiative
referendum petition process.
The Illinois Compiled
Statutes (
ILCS ) is the body of all state laws. Chapter 10 of
the ILCS is the
Election Code. Article 28 of Chapter 10 is
entitled,
Submitting Public Questions.
In Section 28-1 of the Election Code (the first part
of Article 28, cited as 10 ILCS 5/28-1), the first
sentence says, in pertinent part, "The initiation and
submission of all public questions to be voted upon by
the electors of the State or of any political
subdivision ... shall be subject to the provisions of
this Article." That means that public referenda are
permitted, but they have to be done in the manner
specified by State law.
The next sentence of Section 28-1 is the one that has
the effect of prohibiting Recall Referenda in Illinois
that are initiated by citizens' petition. It states,
"Questions of public policy which have any legal effect
shall be submitted to referendum only as authorized by a
statute which so provides or by the Constitution."
The key phrase is "which so provides." Here's what
that sentence means:
The matter of whether an elected official should be
removed from office is a question of public policy.
This question of public policy, if answered yes by
the voters, would have a legal effect, because it would
result in an elected official losing her job, her
office, so this part of Section 28-1 applies to Recall
referenda.
Here's the important part: The question of public
policy shall be submitted to referendum only as
authorized by a statute "which so provides." "Which so
provides" means there has to be a recall statute,
a statute that addresses the subject of recall, in order
for a recall question to be submitted to the voters in a
referendum. The reason you need a recall statute is
that, in order to conduct a recall, you have to have a
statute that specifies the terms by which a recall
referendum is to be conducted. Those terms would
include such things as how many petition signatures are
necessary, and whether approval by the voters requires
merely a majority vote or some sort of super-majority,
such as 60%, two-thirds or another percentage.
There is no such statute in Illinois. There is no
recall statute in the Illinois Compiled Statutes.
Similarly, there also is no recall provision in the
Illinois Constitution.
Since there is no recall statute in the ILCS, and no
such provision in the Illinois Constitution, there are
no terms by which a Recall Referendum can be legally be
conducted in Illinois. Therefore, a Recall
Referendum is both illegal and unconstitutional in
Illinois. There is no provision in the
Illinois Election Code, or anywhere else in the Illinois
Compiled Statutes, on how a recall is to be conducted,
and there is no provision in the Illinois
Constitution that allows for a recall referendum.
So, how come, you might ask, does California have
Recall? Their state laws allow for citizen initiated
recall, and says exactly how a recall referendum is to
be conducted. There is no such similar law or set of
laws in Illinois.
State Senator Rickey Hendon, from the West Side of
Chicago, is the Assistant Majority Leader of the
Illinois Senate. Senator Hendon has proposed a
Recall amendment to the Illinois Constitution. His
Bill, that would establish Recall in Illinois, is
SJRCA 15. "SJRCA" stands for Senate - Joint
Resolution ("Joint" means both the Senate and the House
of Representatives) - Constitutional Amendment.
Senator Hendon's proposed Constitutional Amendment
would allow for the recall of an executive officer
(Governor, Lt. Gov., Attorney General, Secretary of
State, Comptroller and Treasurer), a member of the
General Assembly or an elected officer of a unit of
local government, if their annual salary exceeds
$21,000.
Buffalo Grove Village
Trustees make $4,200 per year, per
Village Ordinance 2.04.010.
SJRCA 15 has been bottled
up in the
Senate Executive Subcommittee on Constitutional
Amendments since shortly after
Senator Hendon introduced the Bill in the Illinois
Senate on February 10, 2009.
I spoke to Senator Hendon, yesterday, to ask him
about his proposed constitutional amendment. He told me
that, while there is widespread support in Illinois for
Recall, the legislative leaders want to limit it to the
Constitutional (executive) officers. In other words,
the General Assembly is fine with a law that would allow
others to be recalled, but the General Assembly won't
allow a Recall law that would allow members of the
General Assembly to be recalled.
Don't you love Springfield?
I notified Buffalo Grove
Village Manager Bill Brimm, yesterday, about my
research and conclusions. He has promised to notify
Village Attorney
William
Raysa about my analysis, so that he can review it
and determine if the Village Board has any legal basis
for continuing to consider their proposed Recall
Ordinance.
I'll let you know what happens.
