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Wednesday, January 13, 2016

Village's Recall Ordinance Held Invalid

The Village of Dolton passed an ordinance last year providing for the recall (removal from office) of elected officials. Under the ordinance, an elected official could be recalled and removed from office by a majority vote of the electorate at a recall referendum.  Two elected officials filed suit, claiming that the ordinance was unconstitutional on a number of grounds, including that the Village was required to submit the issue to referendum before passing an ordinance. The Village defended its ordinance by arguing that it had home rule authority to adopt a recall ordinance. The appellate court agreed with the plaintiffs, and found the ordinance unconstitutional. Heynard v. Village of Dolton, 2016 IL App (1st) 153374

First, the court found that the ordinance "directly impacts the terms of office of elected officials" by establishing a mechanism by which the term of an elected official can be "shortened" upon a successful recall. Any alteration to the term of office of an elected official requires approval by referendum under the Illinois constitution.  Second, the court found that the ordinance changes the manner of selecting elected officials because upon a successful recall, the mayor has the authority to appoint an individual to fill the vacancy. In essence, the filling of a vacancy with a new trustee entails "selection," and that power of selection is reserved to the voters by state statute. The court concluded that Dolton's ordinance was invalid because it violated the Illinois constitutional limitation on a home rule's authority.

In short, a home rule municipality cannot, by ordinance, establish a recall procedure without first going to referendum for prior approval of the specified procedure. However, the court acknowledged that a home rule municipality could conceivably establish a recall procedure by ordinance, but only after it was approved by a valid voter referendum.

As a side note, prior to the court invalidating the recall ordinance, four referenda petitions were filed based on the recall ordinance. Those petitions were challenged, and an electoral board was convened to rule on the validity of the petitions. All four referenda petitions were found to be 300 to 500 signatures under the required minimum, and the electoral board upheld all four objections, striking the four petitions.

Post Authored by Julie Tappendorf


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