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Buffalo Grove Recall Ordinance violates US Constitution, IL Constitution, IL Election Code

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 the Buffalo Grove Village President, Board of Trustees, Village Clerk and Village Manager, from a happier time.

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 the Village web site.

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.

Please leave a comment, below, to let me know what you think, and tell your friends about this.  Send personal comments, comments unrelated to this story or notification of typos that you see in any of my posts to rob@robsherman.com.

I look forward to your comments on this one.  Let me know how you feel about Recall in Illinois and how you feel about the results of my research on this issue.
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Frank Ladonne said:

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Anybody that thinks that simply letting the US Constitution, the Illinois Election Code and the Illinois Constitution get in the way of the BG Board trying to silence Lisa Stone has not been to any BG Board meetings. This Board (old boys club) will stop at nothing to get back to business as usual.

jackspatafora said:

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You'll remember what Mark Twain said: "First God made idiots. That was for practice. Then he made school boards!"

xxxxx777 said:

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I am very sad that Hartstein is even seeking another public office. He is always seen on our public access Comcast channel in the BG Village Hall meetings and he is a bully! I've never seen or heard such blatant negation of "Parlimentary Procedure" that both engages partisan beliefs and inspires discussion which should lead to a common and committed resolution by the governing body.
There is just this one rotund man that no one dares to speak in front of or with a differing opinion. OMG if there should be some timely, accurate reporting - paper trails! - given to US, the public / community! Issues should be openly addressed, discussed and resolved.Perhaps it would be brilliant to know the full extent of deep and dark nepotism here in the BG community. This is absurd, but what if the board were able to show contracts, budgets and who is earning what for a every BG project?

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