by Robert A. Stuart General Counsel

CONSOLIDATION OF ELECTIONS BILL MAKES SUBSTANTIAL CHANGES IN PARK DISTRICT ELECTION PROCEDURES

Brief reference to the Consolidation of Elections Bill (Senate Bill 1149 and House Bill 3 in the Second Special Session of the 1977 General Assembly) was made in "Legal and Legislative Notes" which appeared in the November-December issue of Illinois Parks and Recreation. As indicated, the passage of those Bills and the signing of them into law by the Governor has created numerous changes in election procedures for all units of local government including park districts.

In signing Senate Bill 1149 into law on September 22, 1977 the Governor noted in his message that:

"Senate Bill 1149 and its identical counterpart House Bill 1978 represent a culmination of the hard and diligent work of a number of General Assemblies. These bills represent the best efforts, so far, of the General Assembly to deal with the problems of consolidating elections.

"I am in strong support of the ideals and goals embodied in these bills. They attempt to rationalize the electoral process primarily by reducing the number of elections held to elect public officials or to vote on policy or financial issues. No one would argue that these are not important purposes for elections, but that is not to say that our present system is economical, rational or conducive to maximum participation on the part of the electorate.

"The proliferation of elections in a democracy is a little recognized, but nonetheless pernicious disease. It diffuses interest in the contests, it permits appealing to more responsive segments of the electorate at the expense of majority participation and it wastes time, energy and money.

"For these reasons, I am signing Senate Bill 1149. I do not believe, however, that by making this bill law we have solved all of the problems in this area. Neither the sponsors of these bills, nor the membership of the General Assembly have put forth that claim, and I shall not either.

"In fact, I am attaching this message to this bill to draw further attention to the unsolved problems that still exist. Senate Bill 1149 contains a delayed effective date in order to give those responsible for its implementation and those it affects sufficient time to adjust to its mandates. This interim period will also provide an opportunity for the General Assembly to immediately correct identifiable deficiencies prior to the law going into effect."

Thus, it is clear the Governor recognized the inadequacies of the Bill and the many problems which would require implementation in order to make election consolidation legislation practical and effective. In view of the General Assembly's inaction to date in performing its constitutional duty to replace the personal property tax as required under the provisions of the 1970 Constitution of Illinois, the question might well be raised as to whether or not the General Assembly would take any immediate action to implement the matter of election consolidation.

Under the provisions of the Consolidation of Elections Bill there will be only five elections including primaries held in each two year period, these elections being designated as general, consolidated, and nonpartisan elections. Thus, numerous different elections in many different governmental units will necessarily be held at the same time and in the same voting places. Inasmuch as the boundary lines of the many units of local government in Illinois are very seldom the same, a single voting precinct will contain portions of a number of local governmental units. This necessarily will then result in confusion and complications for both the voter and election officials. A voter in many cases would be required to vote in several different polling places on each election day in order to vote on all issues presented. Thus, in many cases because of the confusion alone voters will necessarily fail to vote on issues and candidates in which they are interested or, on the other hand will vote on issues or candidates for which they are not entitled to vote.

Public Act 80-936 repeals Article 2 of "The Election Code" approved May 11, 1943, as amended, and adds Article 2A in its place. However, it makes no specific change in the many provisions contained elsewhere in the statutes providing for elections in the numerous other units of local government such as The Park District Code, the Municipal Code, the School District Code and others. Article IV of the Illinois Constitution of 1970 (Section 8d) provides "A bill expressly amending a law shall set forth completely the sections amended." Public Act 80-936 in failing to amend specifically and as required under article IV would

Illinois Parks and Recreation 10 January/February, 1978

appear to be unconstitutional in its application and, if so, coming elections held under its provisions can only result in utter confusion as well as an extensive amount of litigation. In support of this position on the question of the constitutionality of the Act the opinion of the Court in the case of People, ex rel Peoria Civic Center Authority vs. Vonachen (340 NE 2nd 1) should be examined.

Public Act 80-936 (Ch. 46 Ill. Rev. Stats, new par. 2A-1) provides as follows:

"(Ch. 46, new par. 2A-1)

"Sec. 2A-1, All Elections - Governed by this Code- Construction of Article 2A.

"(a) No public question may be submitted to any voters in this State, nor may any person be nominated for public office or elected to public or political party office in this State except pursuant to Code, not withstanding the provisions of any other statute.

"(b) All elections in State shall be held in accordance with the consolidated schedule of elections established in Sections 2A-1.1 and 2A-1.2. No election may be held on any date other than a date on which an election is scheduled under Section 2A-1.1.

"(a) In even-numbered years, the general election shall be held on the first Tuesday after the first Monday of November; and an election to be known as the general primary election shall be held on the third Tuesday in March;

"(c) In odd-numbered years, an election to be known as the nonpartisan election shall be held on the first Tuesday after the first Monday in November.

"(e) At the nonpartisan election in each odd-numbered year the following offices shall be filled in nonpartisan elections:

"(3) Commissioners of park districts, including township park districts;

"(Ch. 46, new par. 2A-1.3)

"(Sec. 2A-1.3. Calendar of Elections - Determination and Publication - State Board.

"In January of 1979 and each odd-numbered year thereafter, the State Board of Elections shall adopt and publish an official State calendar of elections listing the elections to be held during that year and the following year, the election dates, and the offices to be on the ballot at each such election. The official calendar shall include all offices in the State.

"The official State Calendar shall comply with the schedule of elections established in this Article 2A.

"(Ch. 46, new par. 2A-38)

"Sec. 2A-38. General Park District - Commissioners - Time of Election.

"A commissioner of a General Park District shall be elected at the nonpartisan election in odd-numbered years to succeed each incumbent commissioner whose term expires before the following nonpartisan election.

"(Ch. 46, new par. 2A-39)

"Sec. 2A-39. Township Park District - Commissioner - Time of Election.

"A commissioner of a Township Park District shall be elected at the nonpartisan election of each odd-numbered year..."

Thus, from the foregoing provisions the following points should be noted in connection with the holding of park district elections in the future. Any referendum or "public question" would necessarily then be held in even-numbered years on the first Tuesday after the first Monday of November, it being noted that no provision whatsoever has been made for the holding of an election required under the provisions the numerous "back-door referenda" provided for in the Code. It should also be noted that referenda on all public issues including school districts, park districts and other districts would necessarily be held at the same time, thus making it difficult or almost impossible for any public question to be seriously considered by the voter. Under Section 2A-1.1 (c) all park district elections would be held on the first Tuesday after the first Monday in November.

It is imperative that the Legislative Committee of the Association pay particular attention to the matter of election procedures as contained in these Consolidation of Elections Bills and must communicate with the Legislative Committees in pointing out to them the problems created by the present statutes and pointing out the necessity of including certain provisions relating to park districts specifically in the bills adopted to implement the present statutes. Such input should immediately be communicated to the Association's Legislative Committee through the various park district boards.

SUPREME COURT UPHOLDS CONSTITUTIONALITY OF CITY OF NAPERVILLE ORDINANCE REQUIRING DEVELOPERS CONTRIBUTIONS OF LAND OR MONEY TO BE USED FOR SCHOOL AND PARK SITES

Park districts in Illinois over the period of the past 20 years have repeatedly sought either state or local legislative action requiring developers of subdivisions to contribute either land or funds in lieu thereof for the purpose of developing school and park sites within the urban development plan. The General Assembly has on numerous occasions in the past rejected proposed legislation submitted through the Illinois Association of Park Districts authorizing and requiring such contributions. In rejecting such proposals the General Assembly has taken the position that such legislation would violate the constitutional provision contained in both the federal and state constitutions prohibiting the "taking of property without due process". Such legislation introduced into the General Assembly in past years has also been strongly opposed by building trades associations as well as associations representing realtors groups.

On June 19, 1972 the City of Naperville adopted an ordinance requiring as a condition of approval of a plat for a subdivision or planned unit development inside or within one and one-half miles of its boundaries that the developer make contributions of land, or money in lieu of land, to be used for school and park sites. The constitutionality of the Defendant's ordinance was attacked by certain developers and owners in the case of 0. L. Krughoff, et al. vs. the City of Naperville. The Plaintiffs in that case, who were the owners of land within one and one-half miles of the City boundaries of Naperville, submitted a final plat of subdivision of the property into residential lots. The City of Naperville, upon the

Illinois Parks and Recreation 11 January/February, 1978

basis of its ordinance, refused to approve that plat because the developers had failed to dedicate land, or cash in lieu of land for the public purposes set forth in the ordinance. The Plaintiffs, in order to secure approval of the final plat, thereupon under written protest contributed $37,650.00 to be held in trust for the acquisition of a school site and further agreed to contribute a lot for the use of the Naperville Park District.

The Circuit Court upheld the validity of the ordinance, which decision was affirmed by the Appellate Court (41 Ill. App. 3rd 334) and an appeal was taken to the Supreme Court which Court allowed the Plaintiffs petition for leave to appeal.

In its opinion filed Oct. 5, 1977, rehearing denied Nov. 23, 68 Ill. 2d 352, the Supreme Court affirmed the holdings of the Circuit Court and the Appellate Court holding the Naperville ordinance valid as a proper exercise of the home rule powers vested in the City of Naperville. The Court in its opinion said:

"In Petterson v. City of Naperville, 9 Ill. 2d 233, the court held valid the statute granting municipalities authority to control and plan subdivisions within their corporate limits and 1 1/2 miles of contiguous territory not included in another municipality. In that case a developer of land outside the city, but contiguous to it, refused to comply with the curb, gutter and storm water drainage requirements of the city's ordinance, contending that the ordinance violated the requirement of uniformity of taxation and resulted in a taking of property without just compensation. In rejecting these contentions the court said: 'The validity of the ordinances is to be tested, neither by the principle of uniformity of taxation nor by the law of eminent domain, but rather by the settled rules of law applicable to cases involving the exercise of police powers.' 9 Ill. 2d 233, 249-59.

"In Rosen v. Village of Downers Grove, 19 Ill. 2d 448, Pioneer Trust & Savings Bank v. Village of Mount Prospect, 22 Ill. 2d 375, Duggan v. County of Cook 60 Ill. 2d 107, and Board of Education v. Surely Developers, Inc. 63 Ill. 2d 193, the court considered the question whether a unit of local government had the statutory authority to require a real estate developer, as a condition to its authorizing the development, to contribute land or money for school facilities. In Rosen, it was held that under the facts of that case there was no statutory authority for an ordinance requiring an assessment of $325 per lot. Pioneer held that under the facts of that case a requirement of dedication of one acre per 60 residential building sites, or one-tenth of an acre per one acre of business or industrial building sites, amounted to an attempted exercise of the power of eminent domain without compensation, and in Duggan the requirement of a cash contribution of $43,000 to two school districts was held void because not authorized by statute. In Surety Developers however, the court held that a developer could be required to contribute cash and land to a school district.

"There are factual similarities and language in Rosen, Pioneer and Duggan which appear to support plaintiffs' arguments that defendant does not have the authority to require the contribution of land, or money in lieu of land, for school sites. In Surely Developers, after analyzing the holdings in these cases the court said: 'As earlier indicated, Rosen and Pioneer both held invalid the contributions required of the developers in those cases. At no time, however, has this court held that land dedication requirement for school grounds are unauthorized by the Municipal Code (Ill. Rev. Slat. 1973. ch. 24, pars. 11-12-5, 11-12-12) or predecessor statutes. Nor has it held that land dedication requirements for school grounds are automatically in violation of the Constitution. Quite the contrary is true, for the implications of both Rosen and Pioneer are that land dedication requirements proportioned to the needs Specifically and uniquely attributable to the developer's activities would be valid. ' (63 Ill. 2d 193, 201.) Here the evidence shows and the circuit court found that the required contributions of land, or money in lieu of land, were 'uniquely attributable to' and fairly proportioned to the need for new school and park facilities created by the proposed developments.

The court further stated:

"We hold that the power conferred by section 11-12-8 is in addition to, and not a limitation of, defendant's power to require the dedication of land, or money in lieu of land. proportioned to the need for new school and park facilities uniquely attributable to the new subdivision."

From the Court's opinion rendered in this case it should be noted that the court clearly relied upon the fact that in the Naperville case the evidence established the fact that the required contributions of land, or money in lieu of land, were fairly proportioned to need and that the requirements complied with reasonable standards established upon the basis of population and need. It should further be noted that in order for a park district to secure such lands, or money in lieu thereof, the park district itself lacks such authority but must rely upon the powers and authority granted to the municipality. It is also of note that the municipality is in the position of securing title to the lands obtained for park purposes and is not necessarily required to convey said lands to the park district after its acquisition. Therefore, the benefits which a park district may derive under the Krughoff opinion must be founded upon the development of full cooperation between the municipality and the district. Such full cooperation and understanding should be thoroughly developed by a park district in proposing the adoption of such an ordinance by its home rule municipality.

CONSTITUTIONALITY OF SECTION 3-10 OF THE PARK DISTRICT CODE RAISED IN APPELLATE COURT, FOURTH DISTRICT

The Illinois Association of Park Districts has been granted leave to file its brief amicus curiae in the case of People, ex rel James M. Skelton, County Treasurer and Ex-Officio County Collector, et at.. Appellee vs. Irwin R. Rose, et al., Objector-Appellant (General No. 14667) presently pending in the Appellate Court of the State of Illinois, Fourth District.

The case arose out of certain tax objection cases heard in the Circuit Court of the Sixth Judicial Circuit, Champaign County, Illinois, in which case the Circuit Court found that the issue of the constitutionality of a statute could properly be raised in a tax objection proceeding. The Circuit Court further upheld the constitutionality of Section 3-10 of the Code. An appeal from the ruling of the Circuit Court has been taken raising the question of constitutionality. The Champaign Park District and the Illinois Association of Park Districts have been granted leave to file their briefs amicus curiae on or before January 10.

Illinois Parks and Recreation 28 January/February, 1978

QUESTION OF ITEMIZATION IN TAX LEVY ORDINANCES RAISED IN CIRCUIT COURT TAX OBJECTION CASES

In a lengthy written opinion filed in the Circuit Court of the 18th Judicial Circuit, DuPage County, the Court in overruling certain taxpayers objections filed upon the basis of the failure of a park district to itemize in its various tax levy ordinances and lack of specificity. The objectors had raised the issue that the park districts of Downers Grove and Naperville would be required to itemize in their levy pursuant to Paragraph 638 of Chapter 120 I.R.S., regardless of the provisions contained in Section 4-4 of The Park District Code.

The Court, after hearing extensive oral argument and examining numerous briefs submitted on both sides of the question, in overruling the objections and holding that itemization was not required in the levy ordinance said:

"The budget and appropriation ordinance for any fiscal year is not intended or required to be in support of or in relation to any tax levy made during that fiscal year."

While the Circuit Court in this case has upheld the validity of this Section of the Code which eliminates the necessity of an itemization in a levy ordinance, it should be borne in mind that this question may well be raised in other tax objectors suits and the question has not been reviewed in the Appellate or Supreme Courts.

MUNICIPAL LEAGUE UNSUCCESSFUL IN ATTEMPT TO SECURE INJUNCTION RESTRAINING THE COLLECTION OF THE UNEMPLOYMENT TAX FROM MUNICIPAL GOVERNMENTS PENDING THE DECISION IN THE FEDERAL COURTS OF THE SUIT FILED BY THE NATIONAL LEAGUE OF CITIES

In an action filed in the Circuit Court of the Seventh Judicial Circuit, Sangamon County, on December 29, 1977, the Municipal League together with the Village of Pawnee, et al. has been unsuccessful in its attempt to secure an injunction to restrain the collection of the unemployment tax (imposed under the provisions of Senate Bill 6 passed by the General Assembly) pending the determination of the constitutionality of the Federal Act raised in the suit presently pending in the Federal Courts filed by the National League of Cities. In that suit the League raises the question of the constitutionality of the Federal Act upon the basis that it precludes the rights of the States to determine whether or not they will impose an unemployment tax.

Illinois Parks and Recreation 29 January/February, 1978