IL High Court says county clerks are administrators, not judges, when it comes to checking the legality of proposed referendums

The Illinois Supreme Court has ruled in a McHenry County case that a county clerk has no right to look beyond the face of a proposed referendum question, in deciding whether it’s legal to put the matter on the ballot, saying such an examination is the job of a judge, not an administrator.

The March 24 decision was authored by Justice Michael Burke, with concurrence from Chief Justice Anne Burke and Justices Mary Jane Theis, Rita Garman, P. Scott Neville Jr., David Overstreet and Robert Carter.

The McHenry Township Board, in McHenry County, put a referendum on the March 2020 ballot to dissolve the township. Voters rejected the idea. The township board submitted a similar proposition in June to County Clerk Joseph Tirio, for placement on the November 2020 ballot. Tirio refused, saying state law prohibited the “same proposition” from going before voters more than once within 23 months.

The board went to McHenry County Circuit Court to force Tirio to put the referendum on the ballot. However, Judge Kevin Costello would not do so, finding a county clerk has authority, per state Election Code, to refrain from allowing a question on a ballot that the clerk deems is barred by law. Costello said Tirio would be “shirking his duties” by “rubber stamping a submitted public question he believes to be violative of the Election Code.”

Illinois Second District Appellate Court reversed Costello, finding a county clerk has no such power.

After the appellate ruling, the township board decided to no longer try to disband the township, but the county took the matter to the State High Court to clarify a county clerk’s competence in such a matter. Justice Burke said the issue deserved to be reviewed, because it is of public concern.

Burke pointed to a 1914 State Supreme Court decision, which said a clerk is an administrator and as a “ministerial officer” examining a proposed referendum, the clerk’s “only function is to determine whether, upon the face of the” proposition, “it is in compliance with the law.”

Burke added that a clerk has no “discretionary power” except to look at the face of a ballot proposition or a candidate’s nominating papers and make sure they are in accordance with law. If the proposition or the papers comply on their face, the clerk must certify the candidate’s name or submit the question to voters, Burke said. A clerk’s “consideration of anything beyond the four corners” of the proposition “amounts to an improper investigation,” Burke stated.

Burke said it is not a proper ministerial act for a clerk to review and analyze “nuanced legal and factual issues” arising from a proposed referendum. Rather, such examinations are “better suited to a judicial determination,” Burke noted.

McHenry County Assistant State’s Attorneys Norman Vinton and Carla Wyckoff appeared before the Supreme Court on behalf of the county.

The township board did not present arguments to the Supreme Court. The board was represented at the circuit and appellate levels by Robert T. Hanlon, of the Law Offices of Robert T. Hanlon & Associates, of Woodstock.