Dunne v. County of Cook

462 N.E.2d 970, 123 Ill. App. 3d 468, 78 Ill. Dec. 851, 1984 Ill. App. LEXIS 1718
Appellate Court of Illinois·Decided April 12, 1984·No. No. 83—661·Published·Cited by 3 cases

Opinions

JUSTICE JIGANTI

delivered the opinion of the court:

The president of the county board of Cook County possesses the statutory authority to veto ordinances enacted by the county board. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) Also pursuant to statute, four-fifths of the members elected to the board may pass an ordinance over the president’s veto. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) On January 17, 1983, the board approved an ordinance which changed the majority vote necessary to override an executive veto from four-fifths to three-fifths. The ordinance specifically stated that it was to supersede the State statute which was enacted in 1887 and which established the four-fifths override requirement. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) The board’s purported authority to enact the ordinance stems from the home rule provisions of the 1970 Illinois Constitution. See generally Ill. Const. 1970, art. VII, sec. 6.

On January 20, 1983, the president of the county board, George Dunne, vetoed the override ordinance. On January 25, 1983, 14 of the 17 members of the board, a four-fifths majority, voted to enact the ordinance over the veto of the president. On January 26, 1983, Dunne filed a declaratory judgment action in the circuit court of Cook County, seeking to find the ordinance unconstitutional under the 1970 Illinois Constitution. Dunne, who is also a member of the board, and two other commissioners are the plaintiffs (collectively referred to as the President) in this action; the defendants (collectively referred to as the Board) are the 14 commissioners who voted in favor of the override ordinance. On March 14, 1983, the trial court granted the President’s motion for summary judgment, finding that the ordinance was an unconstitutional enactment that was therefore “null and void.” This appeal followed.

The constitutional powers of Cook County are derived from article VII of our State’s constitution. Under section 6(a) of article VII, Cook County is a home rule unit which “*** may exercise any power and perform any function pertaining to its government and affairs ***.” These general powers are modified by certain other provisions of section 6.1 The first issue in this appeal revolves around section 6(f) which provides generally that home rule units may only “adopt, alter or repeal a form of government” by referendum. The President contends that the ordinance changing the majority vote necessary to override an executive veto from four-fifths to three-fifths is a change in the form of government and consequently may only be accomplished by a referendum. A referendum was not conducted to approve the ordinance at issue in the case at bar.

The Illinois Supreme Court has helped to define the constitutional meaning of the term “form of government” in two cases decided within IV2 months of each other. As an overview to the following discussion, one of the cases held that a change in the form of government had occurred (Pechous v. Slawko (1976), 64 Ill. 2d 576, 357 N.E.2d 1144), while the other case found that such a change was not present (Allen v. County of Cook (1976), 65 Ill. 2d 281, 357 N.E.2d 458).

In the Pechous case, a statute provided that the mayor of the city of Berwyn possessed the authority to appoint and remove certain village officers. (Ill. Rev. Stat. 1975, ch. 24, pars. 3 — 7—1, 3 — 7—2, 3— 7 — 5.) The city council enacted an ordinance which removed those officers and appointed their replacements. The supreme court found that the council’s attempt to transfer the appointment and removal power from the executive to the legislative branch of government constituted a change in the form of government under section 6(f).

In reaching its holding, the court rejected the council’s argument that a change in the form of government under section 6(f) occurs only when the “basic nature of government” is altered. Rather, the court observed that “the Constitution does not speak of changes in ‘the basic nature of government’ ” (Pechous v. Slawko (1976), 64 Ill. 2d 576, 581, 357 N.E.2d 1144, 1148), and cited a Report of the Committee on Local Government of the Constitutional Convention of 1970 which stated in part that “ '*** more than the manner of electing the county board is included within the meaning of “form of government.” It also includes the relative powers and functions of the county board and the chief executive officer of the county. ***.’ ” Pechous v. Slawko (1976), 64 Ill. 2d 576, 582, 357 N.E.2d 1144,1148.

The Committee Report cited by the court further stated that the term “form of government” contemplates that the General Assembly will provide for various patterns of county and municipal administrative organization. The Pechous court found that such a statutory pattern applied to the form of municipal government in Berwyn. Berwyn was an incorporated municipality governed under article 3 of the Illinois Municipal Code. (Ill. Rev. Stat. 1973, ch. 24, art. 3.) Article 3 provided for a statutory pattern where the mayor was the chief executive officer of the municipality. (Ill. Rev. Stat. 1973, ch. 24, par. 3— 4 — 4.) A municipality could elect by referendum to alter this pattern of government and become either a “managerial form of municipal government” under article 5 of the Code or a “commission form of municipal government” under article 4. (Ill. Rev. Stat. 1973, ch. 24, arts. 4, 5.) Berwyn had not elected either one of these alternative patterns of government. As the court stated in Pechous, “[different relationships between the legislative and executive branches of municipal government are provided” under articles 3, 4 and 5 of the Code. (Pechous v. Slawko (1976), 64 Ill. 2d 576, 583, 357 N.E.2d 1144, 1148.) Under article 3, the mayor possessed the power of appointment and removal. Therefore, the court found that under the statutory pattern which governed Berwyn it would be a change in the form of government for the city council to transfer the appointment power from the executive to the legislative branch of government. Consequently, the Pechous decision was predicated upon a statutory pattern established by the legislature which defined the relative powers and functions of the executive and legislative branches.

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Dunne v. County of Cook, 462 N.E.2d 970, 123 Ill. App. 3d 468, 78 Ill. Dec. 851, 1984 Ill. App. LEXIS 1718 (Ill. Ct. App. 1984).

462 N.E.2d 970 (Dunne v. County of Cook) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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