* First Appellate District…

The City of Chicago and Defendants Board of Election Commissioners for the City of Chicago appeal a final order of the circuit court in favor of the Plaintiffs, a collection of local business and real estate organizations. At issue is whether the circuit court erred by enjoining the Board of Elections from counting and reporting votes related to a referendum on the March 19, 2024, general primary ballot in Chicago commonly known as “Bring Chicago Home.” The referendum relates to a legislative effort to create a graduated transfer tax on real estate in Chicago where state statute requires voter approval whenever the City intends to raise the rate of taxation or impose a new tax. Because we conclude that the circuit court erred, we vacate the judgment of the circuit court and remand with instructions to dismiss the complaint for want of jurisdiction. […]

Like the parties, we are left guessing as to the bases for the circuit court’s ruling because the lower court gave no reasons for its ruling. Rather, the circuit court read the parties’ briefing verbatim in open court and then made its oral ruling: “I am going to grant their motion for judgment on the pleadings and grant the relief requested in the Complaint.” Three days later, the circuit court issued a written order that stated, “For the reasons stated in open court and on the record, Plaintiffs’ Motion for Judgment on the Pleadings is Granted.” […]

Illinois courts, however, have declined to exercise jurisdiction over challenges to referenda that are part of the legislative process. It is well settled that courts cannot “enjoin the holding of an election” on such a referendum. […]

This rule stems from two bedrock principles. First, Illinois’s constitutional system of government is one of separation of powers. In it “[t]he judiciary has no supervision over the legislative branch of government.” Id. Therefore, “[t]he courts can neither dictate nor enjoin the passage of legislation.” Id. The holding of an election for the purpose of passing a referendum to empower a municipality to adopt an ordinance is a step in the legislative process of the enactment of that ordinance. Courts do not, and cannot, interfere with the legislative process. […]

Second, we do not issue advisory opinions. Courts are empowered to rule on the validity of legislative enactments only after they have been enacted. “[U]ntil the legislative process has been concluded, there is no controversy that is ripe for a declaratory judgment.” […]

Plaintiffs further argue that the Illinois Supreme Court has recognized an exception to the rule against enjoining a referendum election where the challenge is based on noncompliance with the eligibility requirements for placing referendum questions on the ballot. However, no Illinois court has ever sanctioned a challenge to a referendum that was a step in the legislative process. […]

Thus, Plaintiffs’ complaint is premature. Fealty to our constitutional system of government and to well-settled concepts of justiciability requires us to decline to interfere with the legislative process. Accordingly, the circuit court erred when it exercised jurisdiction over the complaint. […]

Finally, we have allowed the City to participate in this appeal as if it was a party in all respects for two reasons. First, the City has a direct and substantial interest in this case and risked being unfairly prejudiced by the circuit court’s judgment if not allowed to appeal. Citicorp Savings of Illinois v. First Chicago Trust Co., 269 Ill. App. 3d 293, 299 (1995) (“[I]t is settled law that a non- party may bring an appeal when that person has a direct, immediate and substantial interest in the subject matter, which would be prejudiced by judgment or benefited by its reversal.”). Plaintiffs’ contentions to the contrary are without merit. The City has a clear and direct interest in defending the referendum, which is the product of a City Council resolution.

Second, the circuit court committed an abuse of discretion in denying the City’s petition to intervene. Under the Code of Civil Procedure, “upon timely application anyone shall be permitted as of right to intervene in an action *** when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action.” […]

The referendum is the result of a resolution passed by the Chicago City Council, and it is a step in the legislative process mandated by the Municipal Code. 65 ILCS 5/8-3-19; In re County Treasurer, 2017 IL App (1st) 152951, ¶ 17 (abuse of discretion to deny intervention where intervenors had a direct interest). Further, the only defendant in the case, the Board of Elections, asserted that it had no role in addressing whether the referendum complied with the Municipal Code or the Illinois Constitution, and thus it could not represent the City’s interest. See Kozenczak v. Du Page County Officers Electoral Board, 299 Ill. App. 3d 205, 207 (1998); 10 ILCS 5/6-1 et seq. (West 2022); Flood, 2016 IL App (4th) 150594, ¶¶ 18-21 (abuse of discretion to deny intervention where intervenor’s interests were inadequately represented). Against this backdrop, the City’s petition amply demonstrated its right to intervene, and the circuit court committed an abuse of discretion in concluding otherwise.

CONCLUSION

We offer this gentle reminder that seems warranted in light of some of the contentions raised by amici: we have decided this case exercising our best judgment in strict accordance with the law. Nothing in this decision is intended to suggest that we have any opinion one way or the other on the merits of the referendum at issue. That is a question wisely entrusted not to judges but to the people of the city of Chicago.

For all these reasons, the judgment of the circuit court of Cook County is vacated and the case is remanded with instructions to dismiss the complaint for want of jurisdiction.

Judgment vacated; remanded with instructions.

…Adding… Lots of lawyers thought the case against the referendum was a slam dunk, including Odelson…

“The referendum question was poorly written. The case law supports the fact that it’s illegal to have multiple questions in one question,” said Burt Odelson, who opposed Kasper in the Emanuel residency case. “It is in his favor. It would be a highly charged political decision if it was reversed . . . the appellate court should be unanimous.”

Though Kasper’s involvement in the litigation would appear to set up an almost cartoonish David and Goliath battle between Chicago’s homeless population and an associate of Springfield’s embattled former House speaker, Dorf argues that’s not the case.

“The problem with the Bring Chicago Home referendum is not one of good versus evil. It’s one of competence in drafting a referendum,” he said. “The Johnson administration really should have thought more before they drafted it. They drafted a referendum, which I think made for great press and really showed what he wanted to do. It was really aspirational, but it just was a bad referendum. And they could have done it in a way which would pass the law, and they didn’t do it.”

* Max Bever, Director of Public Information, Chicago Board of Elections…

“This afternoon, the Illinois Appellate Court reinstated the citywide referendum question to the March 19th Primary ballot in Chicago. The initial judgment of the Circuit Court of Cook County is vacated, and the case is remanded with instructions to dismiss the complaint for lack of jurisdiction.

All votes cast for the citywide question will be counted and reported by the Chicago Board of Elections on Election Night, March 19th.”