According to the Illinois Constitution, any municipality with a population
of more than 25,000 is automatically a home rule unit. Smaller municipalities
may adopt home rule by referendum or initiative. Regardless of how
it became home rule, any municipality may elect by referendum to drop
the status. When a population dips below 25,000, state law provides
that the municipality will retain home rule status until the next
election in which a referendum will be held to determine the future
status of the municipality.
To place a home rule referendum on the ballot, either the municipal
or county government must pass a resolution or citizens must file
a petition with signatures of at least ten percent of the registered
voters in the municipality.
The Illinois Constitution restricts home rule counties to those that
have the county executive form of government, which means that the
top official is a chief executive officer elected at large. The County
Executive Act defines "chief executive officer."
Unlike traditional forms of county government, the executive form
contains a chief executive who is not actually part of the county
board. The chief executive has the power to veto ordinances passed
by the county board, much like the President may veto laws passed
by Congress. The chief executive also coordinates the administration
of the county government by proposing a budget, appointing a cabinet
with the advice and consent of the county board, and presiding at
county board meetings where s/he possesses the power to break ties.
The doctrine of separation of powers is the paramount reason for
allowing only executive form counties to become home rule counties.
When a county becomes a home rule unit, its government becomes more
powerful. In the executive form of government, the duties of the county
board and county board chairman are split between a chief executive
and the legislative county board to prevent abuses of this increased
power.
If a county wants to change from one form of government
to another, the Illinois Constitution requires a county-wide referendum.
The County Executive Act regulates the referenda and states that a
county may vote to adopt the executive form of government while choosing
to abstain from or to become home rule.
There are two ways to put either of these referenda
on the ballot:
(1) the county board can pass a resolution calling for a proposal to
adopt the executive form of government, or
(2) the citizens of the county can file a petition with the clerk
of the circuit court of the county.
The petition must be signed by at least two percent of the registered
voters in the county or five hundred individuals, whichever is smaller.
To date, every county home rule referendum has failed. Cook County
automatically became home rule with the constitution of 1970 and remains
the only county possessing the status.
In 1972, DuPage County held a home rule referendum,
which was soundly defeated.
In the early 1990s, DuPage County was involved in
a lawsuit in which county representatives claimed that despite the
failed referendum, the county was home rule because the county board
chairman was elected at large, a condition which met the constitutional
requirements for having a chief executive officer.
The trial court and the appeals court rejected DuPage's
position that a referendum was unnecessary if other qualifications
were met. Thus far, the County Executive Act offers the only route
to home rule: a referendum, under the statute's specifications, that
establishes the statute's version of the executive form of government.
The Powers of Non-Home Rule and Home Rule Units
of Government
The powers of home rule and non-home rule counties and municipalities
come from the state constitution and the state government. Non-home
rule units still operate primarily under Dillon's Rule, although Article
VII, Section 7 of the Illinois Constitution gave them additional powers.
These include the authority to make local improvements (such as building
roads) funded by specially assessed fees, to incur debt except as
limited by law, and to levy additional taxes upon areas within their
boundaries for the provision of special services (such as garbage
collection).
Other than these exceptions, non-home rule units lack inherent powers,
even over purely local affairs such as the financing of election campaigns
for municipal and county office. The authority of non-home rule governments
to regulate in different areas is derived primarily from state statutes
which grant explicit power. And, because Dillon's Rule is still in
effect, courts are strict in their interpretation of the state statutes
that create new powers for non-home rule local governments.
Home rule units are no longer governed by Dillon's Rule. In addition
to powers explicitly given to them by the state legislature, the constitution
gives a home rule unit inherent power over any function "pertaining
to its government and affairs, including, but not limited to, the
power to regulate for the protection of public health, safety, morals
and welfare; to license; to tax; and to incur debt."
No subject is "off limits" to local authorities unless
the General Assembly specifically restricts it. In determining whether
a home rule unit can regulate in a certain area, two primary questions
must be asked:
(1) Is the regulation concerned solely with local matters or does
it involve broader issues?
(2) Has the state chosen to regulate in this area?
Both of these questions typically require extensive legal analysis
because often the determination of whether an action is "local"
or whether the state is already regulating in this area can be very
complicated.
Illinois courts have said that home rule units of government, because
of their inherent power over local affairs, may regulate:
-
cigarette taxes,
-
taxes on retail sales of new motor vehicles,
-
parking taxes,
-
reductions in mandatory fire and police retirement
age,
-
land dedications for schools and parks,
-
zoning landfill sites,
-
mobile home parks,
-
low-income housing developments, and
-
self-service gas.
Illinois courts have ruled that the inherent powers of local government
do not include the power to regulate health ordinances that conflict
with Environmental Protection Agency regulations, noise regulations,
branch banking regulations, and the disposition of unclaimed property,
nor reduction of officials' salaries or discrimination based on personal
appearance.
In some of these areas the state legislature may be able to delegate
its power to local government, but without state action, home rule
units can not regulate in these areas.
Finally, courts have ruled that there are some areas where the state's
power to regulate cannot be passed along to the local unit even if
the state wants to delegate these powers. For example, for public
policy reasons, matters involving divorce and family law, real property,
trusts and contracts must be regulated by the state and cannot vary
from one municipality to the next.
The Citizen Advocacy Center, a non-partisan, 501(c)(3), non-profit
organization, is dedicated to building democracy for the 21st century
by strengthening the public's capacities, resources, and institutions
for self-government. If you are interested in more information, becoming
a volunteer, or making a tax-deductible contribution to the Center,
please contact us. Citizen Advocacy Center Phone: (630) 833-4080 PO
Box 420 Fax: (630) 833-4083 Elmhurst, IL 60126-0420
© Copyright 1998 Citizen Advocacy Center. All rights reserved.
No part of this pamphlet may be reproduced in any form or by any means
without prior, written permission of the Citizen Advocacy Center.
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