Judge throws out McHenry Township lawsuit over ballot question

A judge on Monday ruled McHenry County Clerk Joseph Tirio was right to not put a question about whether to dissolve the McHenry Township on the November ballot.

The township's Board of Trustees filed a lawsuit in late July seeking to have voters again decide whether to get rid of the local government, after Tirio declined to certify the proposal for the upcoming election.

Tirio cited state law prohibiting the same ballot question from being asked twice in a 23-month period. A measure to dissolve the township failed in the March election.

Rob Hanlon, an attorney hired by the trustees, argued that rule should not apply to ballot questions regarding the dissolution of townships because the law requires such proposals to be posed with certain language. He contended that by dictating how ballot measures to eliminate townships are packaged, lawmakers did not intend for the 23-month rule to apply.

The ruling against that logic was made by 22nd Judicial Circuit Associate Judge Kevin G. Costello, who heard oral arguments Friday.

"Here the legislature's intent is clear: not to burden the public with the same referendum proposition every election cycle," Costello said in his written opinion. "The losing party must wait at least 23 months before submitting it again. McHenry Township is seeking to circumvent that statutory requirement and the Court will not countenance such a proposition."

Hanlon also tried to argue Tirio exceeded his authority by declining to refer the question to the ballot because clerks are limited to making a "facial examination of the document" when determining if a measure is fit for voters to decide. The township construed that to mean a clerk could not compare the language of two ballot questions asked within a 23-month period.

Costello disagreed. "Strict enforcement of that position leads to an absurd result," the judge said in the opinion.

Costello granted the request by Tirio's attorneys Monday to dismiss the lawsuit. Tirio was represented by attorneys with the McHenry County State's Attorney's Office, Carla N. Wyckoff and Norman Vinton.

Township Trustee Steve Verr said he expects Hanlon to appeal the ruling, with hope the case could be heard again in time for the dissolution proposal to be put onto the November ballot. The lawyers for the clerk last week said Wednesday is the deadline for ballot content.

Verr was critical of the March election results where about 80% of votes were cast in favor of keeping the township. That question was brought to voters by petitioners who gathered enough signatures to get it onto the ballot. Trustees tried to send the question to the November ballot on their own, through a vote backed by a majority of the board.

Verr said trustees before the March vote had already revealed they planned to ask to dissolve McHenry Township in November, which he does not regret.

"It was put on the [March] ballot by the opponents of the township [dissolution] in a cynical move to cut out all the Republicans voting in the general election," Verr said.

A GoFundMe campaign, started in January called "Save McHenry Township," shows that activists in favor of keeping the township form of government worked to get the March ballot question certified as a "preemptive strike."

Bryan Smith, executive director of the Township Officials of Illinois, a membership organization for townships, acknowledged that some townships in the state might have too small a tax base to operate effectively, and may want to think about combining with another nearby township or pursuing dissolution. But that is not the case with the McHenry Township, which is larger, he said.

A 2018 referendum to abolish McHenry Township's road district also failed with more than 68% of voters against the idea, according to the Northwest Herald.

“They need to listen to the voters. There especially in McHenry, it’s happened many times where the question has been voted on,” Smith said.