The embattled mayor of Dolton has prevailed in her bid to defeat a referendum that would have resulted in her removal from office, after a state appeals panel agreed the referendum was drafted outside boundaries set by the law and the state constitution.
On Sept. 30, a three-justice panel of the Illinois First District Appellate Court sided with Dolton Village President Tiffany Henyard in her dispute with the Dolton village board members, who are attempting to boot her from her office amid continued disputes over village governance and accusations of unethical conduct against Henyard.
In the ruling, the appellate justices said the village board erred in attempting to ask voters to both create a recall provision, and to recall Henyard from office, in the same election. The justices said the state constitution requires voters to first agree to establish the recall provision, then, at a later election, vote on whether to recall the mayor.
Further, the justices said the village trustees’ attempts to leapfrog those constitutional requirements contributed to wording in the first referendum that doomed even their efforts to establish a recall provision, at all.
The appellate opinion was authored by Justice Mathias W. Delort, Justices Joy V. Cunningham and Maureen E. Connors concurred in the decision.
“The trustees were clearly determined to use their authority to remove Henyard from office immediately regardless of the fact that Illinois law does not provide for recall of village officials and the fact that the village had not previously adopted a recall mechanism by referendum,” Justice Delort wrote for the panel.
“The verbal gymnastics necessary to draft the two referenda in a way that would allow Henyard to be removed midterm resulted in an enormously convoluted, confusing, and ambiguous question” that fell short under prior Illinois Supreme Court opinions, Delort said.
In the decision, Delort indicated he believes the decision could be ticketed for further appeals, perhaps to the Illinois Supreme Court.
But if allowed to stand, the decision would end one of the primary ongoing court fights over control of the Dolton village government.
Since she was elected as Dolton village president in 2021, Henyard’s tenure has been characterized by controversy and bickering with other village officials.
In 2021, the village board voted to censure her and to require her to receive approval from the board before she can terminate any village employee.
According to published reports, protesters have demanded her resignation.
Earlier this spring, Henyard also drew criticism for accepting election as township supervisor in Thornton Township, in what The Lansing Journal described as “an unprecedented series of nominations and votes,” that left Henyard as the only candidate standing with minutes to spare before a legal deadline.
The village board and Dolton’s village clerk have also filed lawsuits against Henyard. The lawsuits accuse Henyard of illegally using Dolton police as her own private security, and of directing her to illegally ignore Freedom of Information requests from the public.
Fueled by such public clashes, the village board voted to place two referendums on the ballot for the June 28 primary election, both aimed at ousting Henyard from office.
The first referendum would have established a recall provision in the village.
The second formally asked voters to recall Henyard from office.
Henyard then filed her own lawsuit against the board, claiming the referendums were drafted and placed before voters unconstitutionally. Among other claims, Henyard asserted the referendum would result in an unconstitutional change to the village’s form of government, and the village board illegally placed both referendums on the ballot at the same time.
A Cook County judge declined to block the votes from moving forward, but said the voters’ will would remain on hold, pending outcome of Henyard’s lawsuit.
At the election, voters approved both referendums, potentially teeing up Henyard’s removal.
However, Cook County Judge Paul Karkula struck down the referendums, agreeing with Henyard that the referendums conflicted with the state constitution. That decision meant the approved referendums would be considered null and void, and the village board would need to try again, if it wished to place a recall provision into Dolton’s village code.
The Dolton village trustees then appealed.
But on appeal, the justices also agreed with Henyard that the two recall referendums violated the state constitution and prior Illinois Supreme Court precedent.
The Dolton trustees asserted the referendums should be allowed to stand because the voters had spoken, and expressed their will concerning how they wished “to select candidates of their choice to lead their communities.”
However, the justices said “simply reciting these values” concerning respect for democracy is not enough, because it “does not resolve the unique and unprecedented questions before us.”
The justices noted the Illinois Supreme Court has struck down numerous local referendums, noting the supreme authority over forms of local government rests with the Illinois General Assembly, not local voters at referendum.
Further, the appellate justices noted Illinois law has historically frowned upon efforts to oust public officials before the end of their terms in office.
However, recall mechanisms can still be approved.
But in the case of the efforts to remove Henyard, the referendum questions failed to abide by the guidelines and rules set forth in prior Supreme Court decisions.
The appellate justices said the first referendum, creating the recall mechanism, was too vague and unclear to be allowed to stand. They noted the wording of the referendum could be read to mean the office of village president would be immediately vacated, and that voters could pick the new mayor.
However, state law gives the authority to select an interim mayor solely to the village board.
The justices also knocked the recall mechanism creation referendum for claiming the referendum was placed before voters by a “resolution of the Dolton corporate authorities.” Under state law, the “corporate authorities” of the village would include the mayor, as well as the village board.
They said these notable problems render the referendum void, because the question is “fatally vague and ambiguous.”
That alone would kill the second referendum, as it meant Dolton had no legal recall mechanism on the books.
However, the justices went further, stating clearly that they believed Illinois law and the state constitution would bar voters from voting on both referendum questions in the same election. They pointed to language in the state constitution which states the village board can only move to recall if such a mechanism has already been approved by referendum.
“The constitution’s use of the past tense verb ‘approved’ is crucial and dispositive,” Delort wrote.
“Both referenda were on the same ballot at the same election. Accordingly, when the voters voted to recall Henyard on June 28, 2022, they were voting upon a nullity because, when they voted, there was no approved procedure in place allowing any Dolton official to be recalled…”
The justices issued a permanent injunction forbidding the referendums from taking effect.
Henyard has been represented in the case by attorneys Scott B. Erdman, of Chicago, and Robert L. Windon, of Windon Strategies, of McHenry.