Appellate court rules McHenry County clerk erred by removing township abolition measure from November ballot

McHenry County Clerk Joe Tirio erred by removing a referendum question from the November ballot that would have asked voters to abolish McHenry Township as a unit of government, Illinois appellate judges ruled Thursday.

The opinion, written by Illinois 2nd District Appellate Court Justice Ann B. Jorgensen, walked back the decision of McHenry County Circuit Court Judge Kevin G. Costello to dismiss a lawsuit brought against Tirio by the McHenry Township Board of Trustees.

The litigation sought to reinstate the measure on the ballot ahead of the fall election.

The ruling pleased McHenry Township Trustee Steve Verr, who supports eliminating the township as a taxing entity and voted with a majority of trustees to take the measure to the fall 2020 ballot.

“It was a terrible decision, and it never should have been made,” Verr said of Tirio’s move.

Tirio disallowed the township abolition question from going to voters because the measure was identical to one that had been rejected on a wide margin by voters just months before, in the April 2020 election, and state law says the same ballot measure cannot be asked twice within a 23-month period.

“Statute specifically says that if presented with something that is prohibited, I’m supposed to turn it back, in this case to the township clerk,” Tirio said. “That seemed pretty clear at the time, and it’s obviously not that clear.”

The most recent measure to dissolve McHenry Township was sent to the ballot by a majority vote of trustees.

During the April 2020 election, however, it was put on the ballot by voters who circulated a petition asking to abolish the local government, and it failed by a wide margin.

Those voters sought to ask about getting rid of the township in the April election last year to prevent the trustees from sending such a question to the ballot in the presidential election because of the 23-month limitation.

The appellate court’s ruling did not touch on whether the two ballot questions were similar enough to trigger the prohibition on identical questions being asked in elections within 23 months of each other.

It did, however, note that because Tirio had to rely on knowledge – in this case, his memory – that came from outside the four corners of the township resolution document that would have sent voters the referendum, he was legally unable to block it from the ballot.

“Further, we believe that our holding is consistent with the Legislature’s express policy goal of reducing the number of local governmental units in this state,” Jorgensen wrote.

Justices Liam C. Brennan and Kathryn E. Zenoff concurred with the opinion.

A member of the public could have brought a lawsuit on the grounds it was too soon to again ask to get rid of McHenry Township to enforce the law, the appeals court ruled. Tirio also could have requested “judicial determination,” or in other words have a judge review the matter a final time, if he thought it didn’t belong on the ballot, according to the ruling.

Tirio said he is unfamiliar with that process.

“Obviously, like a lot of Illinois law and election law, it’s not clear. A bunch of smart people who know laws and whatnot cannot seem to agree on what should have happened here,” Tirio said.

The question might have made it to the ballot had Tirio not stricken it, Verr said. The referendum the trustees tried to ask for in November took a different path to the ballot than the April measure that was certified by voter petition, he said.

“I’m really upset at Tirio for trying to be some kind of mini court,” Verr said. “Tirio is not some kind of weird gatekeeper who can decide what is and isn’t on the ballot. The point of the ruling is the voters were robbed.”