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Dunne v. County of Cook

OPINION FILED APRIL 12, 1984.

GEORGE W. DUNNE, PRESIDENT OF THE BOARD OF COMMISSIONERS AND CHIEF EXECUTIVE OFFICER OF THE COUNTY OF COOK, ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF COOK, DEFENDANT (CARL H. HANSEN ET AL., DEFENDANTS-APPELLANTS).



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The president of the county board of Cook County possesses the statutory authority to veto ordinances enacted by the county board. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) Also pursuant to statute, four-fifths of the members elected to the board may pass an ordinance over the president's veto. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) On January 17, 1983, the board approved an ordinance which changed the majority vote necessary to override an executive veto from four-fifths to three-fifths. The ordinance specifically stated that it was to supersede the State statute which was enacted in 1887 and which established the four-fifths override requirement. (Ill. Rev. Stat. 1981, ch. 34, par. 908.) The board's purported authority to enact the ordinance stems from the home rule provisions of the 1970 Illinois Constitution. See generally Ill. Const. 1970, art. VII, sec. 6.

On January 20, 1983, the president of the county board, George Dunne, vetoed the override ordinance. On January 25, 1983, 14 of the 17 members of the board, a four-fifths majority, voted to enact the ordinance over the veto of the president. On January 26, 1983, Dunne filed a declaratory judgment action in the circuit court of Cook County, seeking to find the ordinance unconstitutional under the 1970 Illinois Constitution. Dunne, who is also a member of the board, and two other commissioners are the plaintiffs (collectively referred to as the President) in this action; the defendants (collectively referred to as the Board) are the 14 commissioners who voted in favor of the override ordinance. On March 14, 1983, the trial court granted the President's motion for summary judgment, finding that the ordinance was an unconstitutional enactment that was therefore "null and void." This appeal followed.

The constitutional powers of Cook County are derived from article VII of our State's constitution. Under section 6(a) of article VII, Cook County is a home rule unit which "* * * may exercise any power and perform any function pertaining to its government and affairs * * *." These general powers are modified by certain other provisions of section 6. *fn1 The first issue in this appeal revolves around section 6(f) which provides generally that home rule units may only "adopt, alter or repeal a form of government" by referendum. The President contends that the ordinance changing the majority vote necessary to override an executive veto from four-fifths to three-fifths is a change in the form of government and consequently may only be accomplished by a referendum. A referendum was not conducted to approve the ordinance at issue in the case at bar.

The Illinois Supreme Court has helped to define the constitutional meaning of the term "form of government" in two cases decided within 1 1/2 months of each other. As an overview to the following discussion, one of the cases held that a change in the form of government had occurred (Pechous v. Slawko (1976), 64 Ill.2d 576, 357 N.E.2d 1144), while the other case found that such a change was not present (Allen v. County of Cook (1976), 65 Ill.2d 281, 357 N.E.2d 458).

In the Pechous case, a statute provided that the mayor of the city of Berwyn possessed the authority to appoint and remove certain village officers. (Ill. Rev. Stat. 1975, ch. 24, pars. 3-7-1, 3-7-2, 3-7-5.) The city council enacted an ordinance which removed those officers and appointed their replacements. The supreme court found that the council's attempt to transfer the appointment and removal power from the executive to the legislative branch of government constituted a change in the form of government under section 6(f).

In reaching its holding, the court rejected the council's argument that a change in the form of government under section 6(f) occurs only when the "basic nature of government" is altered. Rather, the court observed that "the Constitution does not speak of changes in `the basic nature of government'" (Pechous v. Slawko (1976), 64 Ill.2d 576, 581, 357 N.E.2d 1144, 1148), and cited a Report of the Committee on Local Government of the Constitutional Convention of 1970 which stated in part that "`* * * more than the manner of electing the county board is included within the meaning of "form of government." It also includes the relative powers and functions of the county board and the chief executive officer of the county. * * *.'" Pechous v. Slawko (1976), 64 Ill.2d 576, 582, 357 N.E.2d 1144, 1148.

The Committee Report cited by the court further stated that the term "form of government" contemplates that the General Assembly will provide for various patterns of county and municipal administrative organization. The Pechous court found that such a statutory pattern applied to the form of municipal government in Berwyn. Berwyn was an incorporated municipality governed under article 3 of the Illinois Municipal Code. (Ill. Rev. Stat. 1973, ch. 24, art. 3.) Article 3 provided for a statutory pattern where the mayor was the chief executive officer of the municipality. (Ill. Rev. Stat. 1973, ch. 24, par. 3-4-4.) A municipality could elect by referendum to alter this pattern of government and become either a "managerial form of municipal government" under article 5 of the Code or a "commission form of municipal government" under article 4. (Ill. Rev. Stat. 1973, ch. 24, arts. 4, 5.) Berwyn had not elected either one of these alternative patterns of government. As the court stated in Pechous, "[d]ifferent relationships between the legislative and executive branches of municipal government are provided" under articles 3, 4 and 5 of the Code. (Pechous v. Slawko (1976), 64 Ill.2d 576, 583, 357 N.E.2d 1144, 1148.) Under article 3, the mayor possessed the power of appointment and removal. Therefore, the court found that under the statutory pattern which governed Berwyn it would be a change in the form of government for the city council to transfer the appointment power from the executive to the legislative branch of government. Consequently, the Pechous decision was predicated upon a statutory pattern established by the legislature which defined the relative powers and functions of the executive and legislative branches.

Dumke v. Anderson was a companion case which was consolidated with the Pechous appeal. Dumke v. Anderson concerned an attempt by the board of trustees of the village of Oak Lawn to appropriate to itself the power to appoint a legal advisor for the village. The village had previously adopted a managerial form of government under article 5 of the Municipal Code and one significant characteristic of such a form of government is that the municipal manager is the administrative head of the municipal government. (Ill. Rev. Stat. 1975, ch. 24, par. 5-3-7.) The board of trustees had only legislative powers; it had no powers with respect to administration. (Ill. Rev. Stat. 1975, ch. 24, par. 5-3-6.) Although the statute did not specifically provide that the village manager possessed the power of appointment, the supreme court found that the board's attempt to appoint a legal advisor encroached upon the authority of the village manager. In support of its conclusion, the court cited 56 Am.Jur.2d Municipal Corporations sec. 186 (1971), which states that a city council in a city manager form of government does not and should not attempt to dictate or confirm the appointments of city officers and employees. The power to appoint a legal advisor, therefore, was an element of the form of government in the pattern adopted by the legislature, even though the statute did not specifically so provide.

Allen v. County of Cook (1976), 65 Ill.2d 281, 357 N.E.2d 458, was handed down by the supreme court shortly after the Pechous decision. In Allen, an existing State statute provided that sums of money in excess of $2,500 could not be appropriated absent a two-thirds vote of the members comprising the Board of Commissioners of Cook County. The Board enacted an ordinance which was "specifically intended to supersede" the statute and provided that sums in excess of $5,000 could not be appropriated unless a simple majority, as opposed to a two-thirds majority, of the Board members approved the appropriation. At the time of the action, the Board was composed of 10 members who were elected from the city of Chicago and six members who were elected from areas of Cook County outside of Chicago. This two-district method of election was established in the 1870 Illinois Constitution (Ill. Const. 1870, art. X, sec. 7) and later preserved in the 1970 Constitution (Ill. Const. 1970, art. VII, sec. 3(c)). The six suburban members of the Board argued that the new appropriation ordinance changed the relative powers between the city and suburban commissioners because, in contrast to actions allowable under the State statute, substantial amounts of money could be appropriated under the ordinance without the consent of the suburban members. Therefore, the suburban commissioners contended that a change in the form of government had occurred under section 6(f). However, the supreme court rejected this argument and found that because neither the two-district method of electing commissioners from Chicago and from outside of Chicago nor the number of Board members to be elected from those districts was altered, adoption of the ordinance did not constitute a change in the form of government under section 6(f).

Our examination of Pechous and Allen reveals that while the supreme court has never established a definitive standard as to what actions constitute a change in the form of government under section 6(f), several guidelines have been offered. Both cases suggest certain actions that do not fall within the ambit of a change in the form of government. Under Allen, it is not a change in the form of government for a legislative branch of government, such as the Board, to alter the relative voting powers between its own city and suburban commissioners in certain instances. Pechous states that a change in the form of government does not necessarily mean that "the basic nature of government" has to be altered. Both cases also offer suggestions regarding actions which would in fact constitute a change in the form of government under section 6(f). Allen states that such a change would be accomplished if the two-district method of electing commissioners or the number of commissioners elected from the city and outside of the city was altered. Pechous observes that "`* * * the relative powers and functions of the county board and the chief executive officer of the county * * *'" must be considered. (Pechous v. Slawko (1976), 64 Ill.2d 576, 582.) We further learn from Pechous that a change in the form of government can occur when a legislative branch of a home rule unit attempts to transfer to itself the powers previously possessed by the unit's chief executive officer. A related question which was controlling under Pechous is whether the legislature has enacted a statutory scheme which distinguishes one pattern of government from another. This discussion leads us now to the manner in which Pechous and Allen affect the facts presented in the case at bar.

Both cases consolidated in Pechous and the case now before us concern specific statutory schemes where the legislature set a statutory pattern establishing the relationship between the executive and legislative branches of government. In Pechous, the power of the executive officer to appoint and remove certain officers was an essential distinction between alternative patterns of municipal government that could be chosen by a municipality. Similarly, in the case at bar, two separate statutes have been enacted by the legislature, one of which deals with Cook County and one of which addresses counties other than Cook County. (Ill. Rev. Stat. 1981, ch. 34, par. 701 et seq.; Ill. Rev. Stat. 1981, ch. 34, par. 901 et seq.) Both statutory patterns concern in many respects the relationship between the relative duties and powers possessed by a county's legislative body and its chief executive officer. The statute addressing counties other than Cook County clearly excludes Cook County and is prefaced as "An Act to provide for the county executive form of government in counties other than the County of Cook, to define the powers, duties and functions of the chief executive officer of counties under the county executive form of government * * *." (Emphasis added.) While the statute concerned with Cook County provides for a four-fifths override requirement, the statute dealing with counties other than Cook County sets out a three-fifths override provision. (Compare Ill. Rev. Stat. 1981, ch. 34, par. 710, with Ill. Rev. Stat. 1981, ch. 34, par. 908.) Where in Pechous the executive appointment power was an essential element which distinguished one type of municipal form of government from another, the four-fifths override requirement in the instant case appears to be one means by which the legislature set Cook County apart from other counties. Pechous found that where a pattern of government had been established by the legislature and then was altered by a legislative branch of a home rule unit, a change in the form of government had occurred under section 6(f). Similarly, in the case now before us, a pattern of government was established for Cook County which was distinguishable from the patterns set by the legislature for other counties in Illinois. The Board attempted to alter that pattern by enacting the override ordinance. By attempting to change the pattern set by the legislature which defined the relative powers between the executive and legislative branches of county government, we believe that the Board's action constituted a change in the form of government under Pechous.

The Board nonetheless argues that the override ordinance was not a change in the form of government under section 6(f). Specifically, the Board places primary emphasis upon Allen and argues that the "essential structure of Cook County government" refers only to the two-district method of board elections and the number of board members to be elected from each district. The Board also contends that the alteration of the President's veto power did not result in the abolition of the veto but was rather a reasonable action that preserved both the veto power and the balance of powers between the city and suburban commissioners. Under a close reading of Allen and Pechous, we fail to find the Board's arguments to be convincing.

It is true that Allen speaks of the two-district method of election and the number of board members to be elected from each district as one element of the form of government of Cook County. However, Allen was concerned only with a dispute concerning the legislative powers of the Board itself and the court had no reason to discuss the relative powers of the Board vis a vis the powers of the county's chief executive officer. We cannot conclude from Allen, as the Board so urges, that the chief executive officer of Cook County plays no role within the form of government of Cook County. Thus, while the court delineated one element of the form of government in Cook County, it by no means set forth a blanket pronouncement that Cook County's form of government consists only of the manner in which the Board is elected. In Allen, the supreme court had no reason to address the other elements comprising the form of government in Cook County.

• 1 While Allen concerned the Board's attempt to alter its own internal powers, Pechous addressed the balance of historic tensions connecting the legislative and executive branches of county government. In the case at bar, as in Pechous, we also encounter a situation where the legislative branch of government has taken action to alter the relative powers possessed by the chief executive officer. The Board contends that their action was reasonable because the ordinance provided for a presidential veto that was similar to those possessed by other executive officers in Illinois and that their action did not border upon an attempt to emasculate an executive power; we think, however, that this argument misses the point. While on first impression one may conclude that an alteration in the form of government only concerns those changes which go to the very heart and spirit of governmental checks and balances, Pechous cautions that "the Constitution does not speak of changes in `the basic nature of government.'" (Pechous v. Slawko (1976), 64 Ill.2d 576, 581, 357 N.E.2d 1144, 1148.) Rather, the court in Pechous concluded that the drafters of the Constitution intended to include "`* * * the relative powers and functions of the county board and the chief executive officer * * *'" within the meaning of the term "form of government." (Pechous v. Slawko (1976), 64 Ill.2d 576, 582, 357 N.E.2d 1144, 1148.) The case at bar presents an attempt by a legislative body to reduce the impact of an executive veto. Only by a thoroughly strained interpretation of Pechous could one conclude that such an action would not affect the relative powers between the legislative and executive branches of county government. Therefore, because both Pechous and the case at bar concerned disputes arising between the executive and legislative branches of county government and because both cases address specific statutory patterns encompassing certain executive powers as key elements, we believe Pechous controls this court's decision. Therefore, we find that the ordinance enacted by the Board was a change in the form of government under section 6(f).

The Board argues alternatively on appeal that it is not bound by that portion of section 6(f) that requires a referendum to bring about a change in the form of government because section 6(f) further provides that "A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 * * *." (Ill. Const. 1970, art. VII, sec. 6(f).) Section 4(a) provides that a county's chief executive officer, the President, "shall have those duties and powers provided by law and those provided by county ordinance." (Ill. Const. 1970, art. VII, sec. 4(a).) When sections 6(f) and 4(a) are read together, the Constitution in effect states that a home rule county possesses the power to provide by county ordinance for the powers of its chief executive officer. Therefore, the Board contends that it could alter the President's veto powers by ordinance rather than by referendum, even if its action would bring about a change in the form of government.

• 2 We do not believe that the Board's interpretation of the Constitution is correct. To read the Constitution in the manner suggested by the Board would require it to effectively provide that a change in the form of government requires a referendum unless that change in any way concerns the powers of the county's chief executive officer. We believe that the proper interpretation of the Constitution requires that the first sentence of section 6(f), which states that a referendum is necessary to bring about a change in the form of government, is a general provision that prevails over the two subsequent sentences in that section. The first of those two sentences concerns certain powers of a municipality which are not at issue here. The second subsequent sentence concerns counties and allows that they may provide for their chief executive officer. We think that this sentence concerning counties may not contravene the first sentence of the section which requires a referendum to bring about a change in the form of government. To do otherwise, we believe, would nullify or greatly diminish the change in the form of government provision. As we discussed earlier, the ordinance at issue in this case constituted a change in the form of government which involved an attempt by the legislative branch of the county to reduce the veto power of the chief executive officer. Such an attempt would increase the legislative power to override an executive veto while decreasing the executive officer's power to have a presidential veto stand. We cannot believe that the framers of the Constitution intended to exempt such a situation from the referendum requirement of the form of government provision simply because it in some manner concerns a county officer's powers.

The Board argues that the supreme court found a referendum to be necessary in Pechous v. Slawko (1976), 64 Ill.2d 576, 357 N.E.2d 1144, simply because the home rule units at issue were municipalities rather than counties. Specifically, the Board maintains that Pechous was decided under the second sentence of section 6(f) which provides that a home rule municipality has the power to "provide for its officers * * * only as approved by referendum or as otherwise authorized by law." (Ill. Const. 1970, art. VII, sec. 6(f).) In contrast, the Board points out that counties such as Cook County are governed under the third sentence of section 6(f), a provision which contains no referendum requirement. We believe that the Board's interpretation of Pechous is incorrect.

• 3 A close reading of Pechous discloses that the court's holding was based upon and its analysis revolved around the change in the form of government provision of the first sentence of section 6(f). While passing mention was made of the section's second sentence, the court's discussion and ultimate decision centered around the constitutional meaning of the term "form of government" and the manner in which that term applied to the facts presented in the consolidated cases. We therefore believe that the distinction between counties and municipalities that has been advanced by the Board is inapplicable where a change in the form of government is found to be present. In other words, when such a change has occurred, the first sentence of section 6(f) applies and a referendum is necessary to carry out the proposed change. Because no referendum was conducted in the case at bar, we find that the ordinance has no legal effect.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

JOHNSON, J., ...


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