7th Circuit nixes Calumet term limits challenge, but says IL referendum limits may be unconstitutional

By Jonathan Bilyk | Dec 6, 2016

A panel of federal appeals judges in Chicago has hinted Illinois’ so-called “Rule of Three” - which limits to three the number of referendums voters in a single municipality can decide in a single election, in a bid to reduce "clutter" on the ballot – may not pass constitutional muster, noting it can invite political gamesmanship on the part of powerful municipal officials who can use their power to crowd out citizen-initiated reform measures.

But for now, the judges of the U.S. Seventh Circuit Court of Appeals declined to use a power struggle between the mayor of a south suburban community and an alderman who aspires to her job to wade any further into the question.

However, the appellate ruling leaves open the door to allow voters in Calumet City to be asked – perhaps as soon as February, and just weeks after approving a referendum to impose mayoral term limits - to decide yet again whether to change the rules governing who is eligible to hold that city’s chief executive post.

On Dec. 2, the Seventh Circuit judges delivered an opinion they had promised months earlier when they had issued an order upholding the decision of a federal judge to not block a mayoral term limits referendum from landing on the November ballot in the city.

The opinion was authored by Judge Kenneth F. Ripple, with judges Diane P. Wood and Ann C. Williams concurring.

The decision centered on the latest machinations in a long-running tussle between Calumet City Mayor Michelle Markiewicz-Qualkinbush and her political rival, Third Ward Alderman Thaddeus Jones. A Democrat, Jones has served continuously on the Calumet City Council since 1997, and also is now in his second term as a state representative in the Illinois House from the 29th Representative District.

According to the court filings, Jones has in recent years positioned himself to run for mayor in Calumet City. This June, Jones’ political allies moved to collect signatures to place on the ballot a referendum to limit to three the number of terms a mayor can serve in Calumet – a move which would have made Markiewicz-Qualkinbush ineligible to seek reelection in the April 2017 municipal elections.

However, before Jones’ referendum could land on the ballot, the Calumet City Council voted to place referendums on the November ballot. Among them were two ballot questions Jones said were aimed directly at him – a ballot question prohibiting a Calumet City official from collecting pensions from both the city and the pension system for state lawmakers, and a second ballot question to limit to four the total number of terms any mayor or alderman could serve.

The term limit question would thus also prohibit Jones from running for mayor in April 2017, and would not allow him to collect a pension from the city, should he also draw a pension as a retired state lawmaker.

However, the Calumet council also placed a third referendum on the ballot, asking voters whether taverns should be allowed to remain open until 2 a.m. on Fridays and Saturdays.

That question then triggered the “Rule of Three” state law, effectively barring Jones’ term limits referendum from also going before voters. Noting Jones’ referendum proposal arrived after the Calumet City Council’s ballot questions were submitted, Cook County Clerk David Orr’s office refused to place the citizen-initiated term limits question on the city’s ballot.

Jones then sued, asking a federal judge in September to issue an injunction blocking the city council-initiated question from going to voters.

However, U.S. District Judge Robert Gettleman refused to issue a preliminary injunction, saying Jones – an alderman who had voted against all of the city-initiated referendum questions in June – had waited too long to challenge the ballot in court, and was now too close to the actual election.

Jones appealed, and the Seventh Circuit judges backed Gettleman’s reasoning.

“As a practical matter … the district court was entitled to conclude that the plaintiffs knew of the other three ballot initiatives on June 23 and, therefore, could have acted sooner,” the appeals judges wrote. “The district court was therefore on solid ground in concluding that the plaintiffs had notice of the ballot initiatives on or about June 23.”

Voters approved the term limits and tavern questions by large margins, but rejected the pensions referendum.

While the Seventh Circuit judges would not yield on the injunction question, and noted Jones’ lawsuit was itself too faulty, they hinted a constitutional challenge to Illinois’ “Rule of Three” law governing referendums could yet find more firm legal footing.

They noted the very scenario which played out during this election cycle in Calumet was “exactly the situation that we indicated would pose ‘serious constitutional issues’ in Georges v. Carney,” a prior case addressing the Rule of Three law.

In that case, the Seventh Circuit had upheld a ruling barring a citizen-initiated advisory referendum to gauge the sentiment of DuPage County voters concerning U.S. nuclear weapons from being placed on the ballot in that county. The court said “there is ‘no constitutional right to use the ballot box as a forum for advocating a policy, … and that Illinois therefore has no constitutional obligation to allow advisory questions to be placed on the ballot.’”

The court, however, said “’the case would be different’” if cities and other municipal governments used their ability to place referendums on the ballot by simple majority vote of a board or council “as a device by which the state (or county) was taking sides” in a debate.

And in the dissent in that case, former Seventh Circuit Judge Richard Dickson Cudahy more stridently said he worried a city or county government could use the Rule of Three to “preempt the ballot spaces at its whim” and “render the rights of private citizens who have obtained sufficient signatures, especially those citizens who espouse controversial causes, quite meaningless.”

Under that reasoning, Jones and his allies in Calumet could “have at least a colorable First Amendment claim” the Calumet council had squelched their rights to speak and put the question to voters.

“The Petition Plaintiffs assert that, by interfering and advocating its own ballot initiatives, the City competed with their petition on an uneven playing field,” the judges wrote.  “This situation well may have amounted to government censorship because the City used the Rule of Three to ‘take sides’ and limit the debate.”

However, while indicating the relative strength of Jones’ claims, the judges stopped short of answering the constitutional question, saying the legal challenge came too close to the election to allow them to step in, and that Calumet voters could yet have a chance to vote on the slighted term limits question.

They noted Jones’ allies had filed their ballot question on Aug. 8. That means the referendum could yet be placed on the city’s Feb. 28, 2017, municipal primary election ballot. While the Calumet City Council has also moved to place three other questions on that ballot, as well, the judges noted those additional three referendums were approved for ballot placement on Aug. 25, meaning the Rule of Three could cause one of the city-initiated referendums to be bumped from the ballot.

“We need not resolve this question of state law today; we merely note that the Petition Plaintiffs still may be able to submit their referendum to voters before a new mayor is elected,” the judges wrote.

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