A state appeals panel has agreed Niles officials correctly determined the Illinois state constitution bars voters from using a referendum to decide if village trustees should be allowed to appoint members to the village's ethics board.
During the April 2021 municipal election, Niles voters approved a referendum allowing for direct election of ethics board members. Although the village scheduled the election for 2023, resident Anthony Schittino sued, claiming the referendum was invalid.
Cook County Circuit Court Judge Araceli De La Cruz agreed and impounded the election results. Then Joseph Makula and David Carrabotta filed an intervening appeal with the Illinois First District Appellate Court.
Justice David Ellis wrote the panel’s opinion, filed Sept. 10; Justices Margaret Stanton-McBride and Cynthia Cobbs concurred.
Ellis noted the push to change the ethics board process started last decade, but hit a roadblock in April 2019 when Village Clerk Marlene Victorine refused to certify the petition because she didn’t believe the referendum was legal or constitutional. Makula sued at that time, arguing the clerk could at most refuse a referendum for petition deficiencies, but not on legal merits.
A county judge and the appeals panel agreed, finding only a citizen objection could potentially stall the referendum on legal grounds. That paved the way for the April 2021 vote, which went 1,661-252 in favor of the change. In 2022, trustees approved a referendum for the June 2022 primary election to repeal the 2021 vote. That measure failed 1,721-1,689.
Carrabotta, a candidate for the ethics board, and Makula initially tried to defeat Schittino’s lawsuit by claiming the courts’ 2021 rulings established the validity of the referendum. Judge De La Cruz denied that effort and also rejected the objectors’ arguments against summary judgment. Their initial appeal was assigned to a different appellate court division, Ellis said, until they asked for it to be moved based on a judicial conflict of interest.
Ellis also noted the village and Victorine, while nominally the defendants, “are clearly aligned with” Schittino and have filed a joint brief with him. As such, all those parties fall under the “plaintiff” umbrella in terms of the legal arguments.
The panel said it could not review the March 15, 2023, order that denied the motion to dismiss Schittino’s complaint, since the notice of appeal only referenced the summary judgment from April 26, 2003.
On appeal, Makula and Carrabotta argued Schittino waited too long to challenge the propriety of the 2021 referendum, creating legal prejudice against the 11 people who filed nomination papers for the ethics board election. But the panel noted the men didn’t raise that concern in their initial motion to dismiss, nor did they raise it as an affirmative defense when Judge De La Cruz denied the motion. However, the panel declined to consider this grounds for forfeiture given that the “suit, for understandable reasons, moved at warp speed.”
However, the panel concluded, the intervenors “presented no evidentiary basis whatsoever to establish the elements of unreasonable delay and prejudice — no affidavits, no deposition testimony, no citations to official sources, nothing.” They initially didn’t say how Carrabotta or any other candidate was prejudiced, and on appeal only argued he “expended significant time, energy, labor and money to qualify for the April 4, 2023 ballot.”
Eliis further noted Schittino wouldn’t have sued before the June 2022 referendum vote and waiting seven months after “does not strike us as an unreasonable amount of time to challenge the constitutionality of an adopted referendum, without more. And we have been provided nothing more by way of evidentiary fact.”
Turning to the substantive question of whether the referendum complied with the Illinois constitution’s home rule provisions, the panel first noted the 2021 appellate ruling didn’t address that question and “under no circumstances could we glean the slightest bit of guidance from” that opinion.
More importantly, home rule municipalities can provide for their “officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law,” according to the Constitution. But “officers” should not be as broadly defined as Makula and Carrabotta suggest.
Ellis cited a 1975 Illinois Supreme Court opinion, Paglini v. Police Board of Chicago, which established city police board members are not municipal officers. Later rulings reached similar conclusions for library board members. Ellis said the Illinois Municipal Code requires a home rule village to have “a president, trustees and a clerk,” and without evidence showing Niles has elevated its advisory ethics board to that status, its members should not be considered “officers.”
“While ethics boards such as the one in Niles perform valuable work, and by no means do we suggest otherwise, the case law leaves no room for debate — members of Niles’s ethics board are not ‘officers’ under” the law," Ellis concluded.
Attorney Daniel J. Kelly, of Chicago, represented Carrabotta and Maukla. He did not respond to a request for comment.
Schittino was represented by Laduznsky & Associates, of Chicago, and Odelson, Murphy, Frazier & McGrath, of Evergreen Park.
Mitch Johnson, a spokesperson for the village of Niles, said: “The village appreciates the appellate court’s opinion that upholds home rule municipal authority to provide for their own, internal committees and clarifies a limit to purportedly binding citizen-initiated referendum that seek to force changes beyond providing for ‘officers, their manner of selection and terms of office’ as stated in the Illinois Constitution. The village has not yet received any notification or communication from any party regarding any attempt to seek leave to appeal to the Supreme Court of Illinois. As it stands, the village will continue to operate its committees and departments in the manner provided by its Code of Ordinances and as otherwise required by law.”