In 1970, the relationship between state and local governments experienced a noteworthy change when the Illinois Constitution was altered to include “home rule” provisions under Article VII, section 6, of the Illinois Constitution. Writing for the majority in Evanston v. Create, Inc., Justice Moran of the Illinois Supreme Court succinctly stated the purpose “home rule” serves. Home rule units are vested with broad authority because “the local governing body can create an ordinance specifically suited for the unique needs of its residents and is keenly and uniquely aware of the needs of the community it serves.” Instead of legislating in the abstract, home rule units have the innate ability to enact ordinances in direct response to immediate issues. In light of this broad vesting of power with home rule units, it is important to understand the Constitutional authority supporting home rule powers as well as the judiciary’s interpretation of the scope of such authority.
Constitutional Authority
As mentioned above, home rule power is derived from Article VII, Section 6 of the Illinois Constitution and was intended to provide broad power to certain units of local and municipal government. Home-rule power is automatically granted to those counties that have an elected official acting as a chief executive officer, as well as any municipalities with a population of more than 25,000 residents. In addition, a municipality that does not otherwise meet this population requirement may elect to become a home rule unit by referendum.
In order for there to be a proper exercise of home rule power, 1) the subject of the exercise of the power must pertain to local government and affairs, and 2) the subject must be one where the legislature did not expressly preempt home rule.” Local government affairs include, but are not limited to, “the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” This statewide/national concern versus local government and affairs inquiry is guided by the “nature and extent of the problem, the units of government which have the most vital interest in its solution, and the role traditionally played by local and statewide authorities in dealing with it.” If both of the aforementioned elements have been satisfied, then Illinois Const., Art. VII, § 6(i) permits home rule units to “exercise and perform concurrently with the State any power or function of a home rule unit.”
However, the Illinois General Assembly may enact legislation that preempts home rule power. In doing so, the legislature must 1) provide an explanatory note for bills that seek to limit home rule powers, which estimates the impact of the bill on the powers and functions of home rule units; and 2) provide expressly that it intends to preempt home rule authority by enacting legislation specifically addressing the extent of the limitation. Thus, the onus of preempting home rule authority is on the legislature because the judiciary has explicitly rejected implied preemption in this context. Responding to the dissent in his strongly-worded special concurrence in Palm v. 2800 Lake Shore Drive Condo. Ass’n, Justice Robert Thomas noted that if the legislature wants something to be exclusively controlled by the state, “then the [it] can make it such with a single sentence.”
Local Government and Affairs
Illinois case law has differentiated between what does and what does not pertain to local government and affairs. Home rule units are favored by Ill. Const, Art. VII, Section 6(m) because home rule powers and functions are construed liberally. Such was the case in Village of Bolingbrook v. Citizens Utils. Co., where the Court found that the local nature of the problem (raw sewage discharge) and the lack of express preemption under the Public Utilities Act meant that the ordinances enacted by the Village of Bolingbrook trumped that sizeable piece of legislation. The ordinances at issue prohibited unlawful disposal of objectionable waste and the discharge of raw sewage into natural outlets, and each violation carried a fine of $100. The Illinois Supreme Court found the following aspects of raw sewage discharge in this context to weigh in favor of it being a local problem:
- The total fines assessed by plaintiff against defendant are less than $5,000;
- The isolated nature of the effects of raw sewage discharge; and
- The citizens of the home rule unit were subjected to raw sewage being dumped on their property, which represents a real and immediate danger to the health and welfare of plaintiff’s constituents.
Consequently, the court rejected the utility company’s argument that sewage discharge had a statewide impact, and held that the Public Utilities Act was preempted by Bolingbrook’s home rule powers.
On the other hand, the First District Appellate Court in City of Chicago v. Vill. of Elk Grove illustrates a situation where a local ordinance did, in fact, infringe upon an area of statewide concern. The Village of Elk Grove passed an ordinance that imposed a fee on landowners seeking to disconnect their property from the village. The fee was calculated on a per acre basis at $135,360/per acre. This fee became an issue when Chicago sought to purchase property from the village in its efforts to reconfigure O’Hare International Airport’s runways. Chicago promptly sued for a judgment declaring the ordinance void, and the court—relying upon an earlier decision in La Salle National Trust, N.A. v. Village of Mettawa, which held that “the traditional role of the State and the State’s vital interest in disconnection makes disconnection primarily a matter of statewide concern—found that the immense fees imposed by the village placed an undue burden on access to courts for disconnection proceedings. Even if the fee could be characterized as a tax (in an attempt to squeeze the ordinance into Illinois Const., Art. VII, §6(a)) it was nevertheless an unconstitutional exercise of home rule power because it interfered significantly with a matter that was of statewide concern.
Conclusion
Clearly, the power dynamic between state and local governments experienced dramatic shift in favor of local governments when Article VII, Section 6, of the Illinois Constitution was enacted. Most legal authority in Illinois supports proposition that home rule powers are broadly construed, and courts will generally find in favor of the home-rule unit in the gray areas where state and local concerns overlap. As a result, home rule unit’s exercise of its power will likely trump state legislation absent express preemptive intent from the Illinois General Assembly. Thus, home rule power represents a powerful tool for counties and municipalities exercise their autonomy when dealing with matters pertaining to local government and affairs.
1) Evanston v. Create, Inc., 85 Ill. 2d 101, 113-114 (1981).
2) See Scadron v. Des Plaines, 153 Ill. 2d 164, 174 (1992).
3) Illinois Const., Art. VII, § 6(a).
4) Id.
5) Palm v. 2800 Lake Shore Drive Condo. Ass’n, 2013 IL 110505, P36, (2013) quoting City of Chicago v. Stubhub, Inc., 2011 IL 111127, P22, n. 2.
6) Illinois Const., Art. VII, § 6(a).
7) Kalodimos v. Morton Grove, 103 Ill. 2d 483, 501 (1984).
8) 25 ILCS 75/5
9) Evanston v. Create, Inc., 85 Ill. 2d 101, 108 (1981); 5 ILCS 70/7.
10) Village of Bolingbrook v. Citizens Utils. Co., 158 Ill. 2d 133, 141 (1994) (declining to adopt a rule involving preemption by comprehensive legislation); see also Scadron, 153 Ill. 2d at 187-88).
11) Palm v. 2800 Lake Shore Drive Condo. Ass’n, 2013 IL 110505, P83 (2013) (Thomas, J. concurring).
12) Citizens Utils. Co., 158 Ill. 2d 133.
13) City of Chicago v. Vill. of Elk Grove, 354 Ill. App. 3d 423 (1st Dist. 2004).
