ILGL Article
Submitted by Christian G. Spesia
April 11, 2008
A client presents you with a stack of local ordinances from New Jersey, California and Florida that regulate campaign contributions for municipal elections and asks whether your non-home rule unit can adopt similar regulations. Your immediate response is that absent statutory authority, your non-home rule Village cannot regulate in this area. The client points to his stack of authority and requests a written opinion. The memorandum in response follows. The memorandum does not address the First Amendment issues that are addressed in the seminal case of Buckley v. Valeo, 424 U.S. 1 (1976) and its progeny.
ISSUES: 1. Whether a Non-Home Rule Municipality Can Adopt An Ordinance Regulating Campaign Contributions?
- Whether a Non-Home Rule Municipality Can Amend Its Ethics Ordinance To Include More Restrictive Limitations On Gifts?
ANSWERS: 1. Whether a Non-Home Rule Municipality Can Adopt An Ordinance Regulating Campaign Contributions? No.
Non-home rule municipalities have no authority under Illinois law to regulate campaign contributions. Campaign contributions are regulated by a specific statutory scheme by the State of Illinois. In cases where the state has a statutory scheme in place and no express authority exists for local regulation, the Illinois Supreme Court has consistently held that non-home rule units have no authority to interfere with that statutory scheme. While some other states have allowed their municipalities to enact local ordinances dealing with campaign finance, those municipalities are the equivalent of Illinois Home Rule units.
- Whether a Non-Home Rule Municipality Can Amend Its Ethics Ordinance To Include More Restrictive Limitations On Gifts? Yes.
A non-home rule municipality does have implied authority under Illinois law to amend its ethics ordinance to be more restrictive than the state statute. However, the Village should recognize that it cannot ban campaign contributions that comply with the Illinois Election Code as those contributions are expressly excepted from the State Ethics Act’s gift ban provisions.
ANALYSIS:
I. Non-Home Rule Municipalities Have No Independent Authority to Limit Campaign Contributions in Illinois.
- The Powers Vested in Non-Home Rule Units.
Article VII, Section 7 of the Illinois Constitution states:
Counties and municipalities which are not home rule units shall have only powers granted to them by law and the powers (1) to make local improvements by special assessment and to exercise this power jointly with other counties and municipalities, and other classes of units of local government having that power on the effective date of this Constitution unless that power is subsequently denied by law to any such other units of local government; (2) by referendum, to adopt, alter or repeal their forms of government provided by law; (3) in the case of municipalities, to provide by referendum for their officers, manner of selection and terms of office; (4) in the case of counties, to provide for their officers, manner of selection and terms of office as provided in Section 4 of this Article; (5) to incur debt except as limited by law and except that debt payable from ad valorem property tax receipts shall mature within 40 years from the time it is incurred; and (6) to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services to those areas and for the payment of debt incurred in order to provide those special services. Illinois Const., Art. VII, § 7
Thus, the Constitutional power granted non-home rule authorities is limited to the six (6) enumerated powers outlined above; as well as any powers granted by the state legislature. In addition, the Illinois Supreme Court has held:
The commentary to section 7 notes that this section maintains the concept of Dillon’s Rule with respect to non-home-rule units of local government. Dillon’s Rule provides that municipalities possess only those powers expressly granted, powers incident to those expressly granted, and powers indispensable to the accomplishment of the declared objects and purposes of the municipal corporation. Pesticide Public Policy Found. v. Wauconda, 117 Ill. 2d 107, 112 (Ill. 1987) (emphasis added).
In regard to issues relating to campaign contributions, Illinois has its own comprehensive statewide statutory scheme. See Illinois Election Code, Article 9, Campaign Contributions and Expenditures, 10 ILCS 5/9-1 et. seq. This statutory scheme requires disclosure of certain contributions and expenditures, but places no limitation on the amount of the contribution. The Election Code specifically does not grant power to non-home rule authorities outside of the requirements of the election code. The legislature has simply not granted additional authority to non-home rule units to pass ordinances on this specific issue.
- Illinois Case Law Provides Many Examples of Non-Home Rule Units Exceeding Their Authority and Being Reversed in the Supreme Court.
The Illinois Supreme Court addressed a similar situation in Hawthorne v. Olympia Fields, 204 Ill. 2d 243 (Ill. 2003). In this case, the Village of Olympia Fields, a non-home rule unit, sought to ban day-care homes from operating within the Village limits. The day care home at issue had received a license from the State Department of Children and Family Services (DCFS) under the Illinois Child Care Act, 225 ILCS 10/1 et seq.
The Supreme Court held that, because the Village was a non-home rule unit, the Village could not adopt ordinances in opposition to and infringing upon the state statute. The Court found the ordinances conflicted with the Illinois Child Care Act, and held that the license holder was entitled to operate a day care home.
The Court reviewed the law as follows:
In analyzing the relationship between Olympia Fields’ zoning ordinance and state law regulating day-care homes, we begin by noting that Olympia Fields is a non-home-rule unit of government. As such, it is governed by Article VII, Section 7, of the Illinois Constitution of 1970 (Ill. Const. 1970, Art. VII, §7). Article VII, Section 7, confers six basic powers on non-home-rule municipalities such as Olympia Fields…
Beyond the foregoing enumerated powers, “municipalities which are not home rule units shall have only powers granted to them by law.” Ill. Const. 1970, Art. VII, §7. They have no inherent powers. They may exercise only those powers that the state legislature confers upon them, either expressly or impliedly, by statute.
Hawthorne, 204 Ill. 2d 243, 255 (emphasis added).
The Court applied this legal reasoning to the facts of the Olympia Fields case and reached the following conclusion:
Because it is a non-home-rule unit, Olympia Fields cannot adopt ordinances under a general grant of power that infringe upon the spirit of state law or are repugnant to the general policy of the state. Although the Village possesses zoning powers by virtue of Article 11, Division 13, of the Illinois Municipal Code (65 ILCS 5/11-13-1 et seq. (West 2000)), ordinances enacted under those powers that conflict with the spirit and purpose of a state statute are preempted by the statute. “Where there is a conflict between a statute and an ordinance, the ordinance must give way.” Village of Mundelein v. Hartnett, 117 Ill. App. 3d 1011, 1015 (1983).
As detailed earlier in this disposition, the operation of child-care facilities in Illinois is regulated by the state…
Pursuant to its statutory authority, DCFS has promulgated comprehensive regulations governing the physical facilities a day-care home must possess (89 Ill. Adm. Code §406.8 (2002)); the characteristics and qualifications of the home’s family, caregivers, assistants and substitute caregivers (89 Ill. Adm. Code §§ 406.9 through 406.11 (2002)); the number and ages of children the home may serve (89 Ill. Adm. Code §406.13 (2002)); the opportunities for daily activity the home must provide to the children (89 Ill. Adm. Code §406.16 (2002)); and a wide variety of other matters ranging from nutrition and meals (89 Ill. Adm. Code §406.17 (2002)) to recordkeeping (89 Ill. Adm. Code §406.24 (2002))
These standards apply uniformly throughout the state.
Hawthorne, 204 Ill. 2d 243, 259-260 (emphasis added).
In an earlier case, the Illinois Supreme Court used similar reasoning to reach similar results when discussing the power of a non-home rule unit. See Pesticide Public Policy Found. v. Wauconda, 117 Ill. 2d 107 (Ill. 1987). The issue was as follows. The plaintiffs were a non-profit group in the pest control industry. The Village of Wauconda was a non-home rule unit that had enacted ordinances requiring pesticide permits, annual fees, and restricting application of pesticides under various circumstances. The plaintiff’s argued that the Illinois Pesticide Acts preempted the Village ordinances.
The Illinois Supreme Court wrote:
In contrast to the broad powers exercised by home rule units in Illinois Wauconda, as a non-home-rule unit, has only those powers granted to it by law, and certain powers enumerated in Article VII, Section 7, of the Illinois Constitution. The commentary to section 7 notes that this section maintains the concept of Dillon’s Rule with respect to non-home-rule units of local government. Dillon’s Rule provides that municipalities possess only those powers expressly granted, powers incident to those expressly granted, and powers indispensable to the accomplishment of the declared objects and purposes of the municipal corporation. Because pesticide regulation is not indispensable to the purposes of the Village, the Village must point to some statute which expressly or impliedly authorizes the Village to enact the ordinance at issue.
Pesticide Public Policy Found, 117 Ill. 2d 107, 112 (emphasis added).
The Illinois Supreme Court also discussed the concept of the “comprehensive scheme” in Pesticide Public Policy. The Court held:
Where the legislature enacts a comprehensive scheme of regulation, the legislature implies by the scheme that there is no room for additional regulation by local government units…
Although the Pesticide Act, together with the Pest Control Act, has divided its expansive authority over pesticides among three entities, all of them are agencies of State government; notably absent from the acts is any provision delegating authority to, or allowing regulation by, units of local government. It is apparent from the acts that the General Assembly has intended that the State occupy exclusively the field of pesticide regulation.
Pesticide Public Policy Found., 117 Ill. 2d 107, 116-117 (emphasis added).
In fact, this issue of non-home rule units exceeding their authority has been litigated numerous times over the last few decades and the Illinois Supreme Court has uniformly ruled in the same manner when faced with similar facts. For example, in the early 1980s, the Court heard County of Kendall v. Avery Gravel Co., 101 Ill. 2d 428 (Ill. 1984).
In this case, Avery Gravel was granted a permit from the Illinois EPA to operate a strip mine. The Supreme Court held that the Illinois Environmental Protection Act superseded local zoning ordinances. The Supreme Court further held that because the county was a non-home rule unit, it could not avoid state environmental regulation through its local ordinances.
The Court wrote:
It was established in oral argument that Kendall County is a non-home-rule unit of government…An assessment of the relationship between State legislation and regulations enacted by a local governmental unit requires a different approach when the local unit is a home rule unit. Under the 1970 Illinois Constitution (Ill. Const. 1970, Art. VII, Sec. 6), effective July 1, 1971, many local units of government became, or were given the power to become, home rule units, which were granted the following power:
‘Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but 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.’ (Ill. Const. 1970, art. VII, sec. 6(a).)” 75 Ill. 2d 494, 507-08.
Since Kendall County is a non-home-rule unit, the county cannot avoid State environmental regulation
County of Kendall, 101 Ill. 2d 428, 434 (emphasis added).
In the mid-1970s, the Illinois Supreme Court decided Carlson v. Worth, 62 Ill. 2d 406 (Ill. 1976). Similar to Kendall, this case involved the application of environmental ordinances. A landfill operator received a permit from the Illinois EPA. A short time thereafter the Village enacted an ordinance making it unlawful to operate a sanitary landfill within the Village without a Village permit.
The Illinois Supreme Court made it clear from the beginning of its opinion that the issue at hand was, “the authority of a non-home-rule municipality to superimpose the requirements of its own ‘environmental protection ordinance’ upon the holder of a permit for the operation of a sanitary landfill issued by the State Environmental Protection Agency pursuant to the Environmental Protection Act.” Carlson, 62 Ill. 2d 406, 407. The Court went on to hold that local regulation was preempted by the Illinois Environmental Protection Act; and, that the Illinois EPA did not have the power to delegate its authority in such matters to a local unit. Carlson, 62 Ill. 2d 406, 409-411.
While it is true that none of the cases discussed specifically deal with the area of campaign finance and/or contributions, it is clear that these cases establish a pattern wherein the Illinois Supreme Court has uniformly found that non-home rule units may not exceed the limits of their authority, particularly in the face of state statutes dealing with similar issues.
C. Campaign Ordinances Passed By Municipalities in New Jersey, California and Florida Cannot Be Applied To Support Similar Regulations in Illinois Municipalities.
While some municipalities in states other than Illinois have successfully passed ordinances dealing with campaign contributions, those municipalities may not have the “home rule” vs. “non-home rule” authority issues facing Illinois municipalities. Ordinances passed in other states and cases decided in other states are not binding authority on Illinois courts. In many cases, the ordinances in other states are passed pursuant to specific authority granted those municipalities—they do not face the limitations enacted by the Illinois legislature and upheld by the Illinois Supreme Court.
For example, in New Jersey, several municipalities have passed ordinances similar to those proposed here. However, in New Jersey, all municipalities have been granted the authority to pass “necessary and proper ordinances” as long as the ordinances do not conflict with State or Federal law. See N.J. Home Rule Statute, N.J. Stat. § 40:48-2. Thus, New Jersey municipalities do not require the separate statutory authority required of non- home rule units in Illinois.
California, cited as another example where municipalities have enacted campaign contribution laws, has a different Constitutional provision than Illinois. The California Constitution states: “It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs.” Cal Const, Art. XI § 5. Thus, California also does not have the “home rule”, “non-home rule” dichotomy that exists in Illinois.
A third example is the State of Florida. Again, the Florida Constitution provides broader powers to municipalities and, in effect, establishes all Florida municipalities as “home rule” municipalities. The Florida Constitution states:
Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Each municipal legislative body shall be elective. Fla. Const. Art. VIII, § 2
In summary, ordinances passed in municipalities located outside of Illinois have little to no bearing on the issue of whether a non-home rule unit in Illinois has the authority to pass an ordinance regulating campaign contributions when the State of Illinois has specifically limited powers granted to non-home rule units which is not the case in other states such as New Jersey, Florida and California. While those cases may address similar constitutional issues concerning political speech and the First Amendment, they do not necessarily address the home rule/non-home rule issue.
II. The Village Can Adopt More Restrictive Gift Ban Provisions Than Those Found In The Illinois Ethics Act.
A reasonable interpretation of the interplay between the statutory sections of the Illinois State Officials and Employees Ethics Act, 5 ILCS 430/1-5, provides a good faith basis for argument that a unit of government can be more restrictive on these issues in local ordinances.
The key section of the statute is 5 ILCS 430/70-5, which reads, in pertinent part:
Within 6 months after the effective date of this Act, each governmental entity shall adopt an ordinance or resolution that regulates, in a manner no less restrictive than Section 5-15 and Article 10 of this Act, (i) the political activities of officers and employees of the governmental entity and (ii) the soliciting and accepting of gifts by and the offering and making of gifts to officers and employees of the governmental entity.[1]
Although as discussed, supra, non-home rule units have only the authority given to them by the Illinois Constitution and though state legislative enactments, recall that the legislative authority need not be express, but may also be implied by statute. See e.g. Hawthorne v. Olympia Fields, 204 Ill. 2d 243 (Ill. 2003) (“[Non Home Rule Units] have no inherent powers. They may exercise only those powers that the state legislature confers upon them, either expressly or impliedly, by statute.)
Because the legislature specifically grants local government’s the authority, and in fact, requires the units to have passed legislation “no less restrictive” than that required under the Act, it certainly can be argued that the legislature granted implied authority to these same units of local government to be more restrictive. If the legislature intended to limit units of local government to passing ordinances exactly in lockstep with the state guidelines, it would have ordered the local governments to do so, rather than merely limiting the governments to be “no less restrictive.”
Further, 5 ILCS 430/70-5 specifically cites to local agencies passing regulations in accordance with Article 10 of the Act. Article 10 has a provision that specifically allows state agencies to adopt policies that are more restrictive than those set forth in the Act.[2] While state agencies and local government units are defined differently by the Act, the citation to Article 10 in the section of the statute requiring local government compliance can be seen as further evidence that units of local governments may enact more restrictive ordinances than those required under the Act.
However, the unit of local government seeking to expand upon the Ethics Act, specifically the portion dealing with the “gift ban” should be mindful of one exception in particular within Article 10 of the Act. The statute says, in pertinent part:
Sec. 10-15. Gift ban; exceptions. The restriction in Section 10-10 [5 ILCS 430/10-10] does not apply to the following:
(1) Opportunities, benefits, and services that are available on the same conditions as for the general public.
(2) Anything for which the officer, member, or State employee pays the market value.
(3) Any (i) contribution that is lawfully made under the Election Code or under this Act or (ii) activities associated with a fundraising event in support of a political organization or candidate
[1] “Governmental entities” are defined in the Act as “a unit of local government or a school district but not a State agency.” 5 ILCS 430/1-5
[2] “A State agency may adopt or maintain policies that are more restrictive …” 5 ILCS 430/10-40
