The fine limits of due process and home rule authority took center stage Wednesday afternoon at a pretrial hearing in the lawsuit seeking to invalidate City Council’s approval of concerts at the new Ryan Field.
Standing before Cook County Circuit Court Judge Pamela McLean Meyerson in downtown Chicago’s Richard J. Daley Center, attorneys for the plaintiffs, the city and Northwestern University gave oral arguments for two hours on the “legal sufficiency” of some of the lawsuit’s claims.
The city and university, respectively the defendant and intervenor in the lawsuit, filed separate motions to dismiss the suit’s three procedural claims in February and March. These claims argue on different grounds that the ordinance allowing concerts needed a higher vote for approval than the 5-4 vote it received after Mayor Daniel Biss cast the tiebreaking yes vote on Nov. 20, 2023.
The 56-page lawsuit, filed by 13 stadium neighbors and the Most Livable City Association on Nov. 30, consists mostly of the first count alleging the plaintiffs’ due process rights were violated throughout the nearly yearlong approval process. Neither the city nor university moved to dismiss this claim, meaning the lawsuit will continue regardless of whether some or all of the procedural claims are dismissed.
‘Core of due process’ vs. ‘constitutional lipstick‘
Counts II and III both allege a higher majority was needed under different provisions of the city’s code. While the city and NU’s attorneys strongly contested the factual accuracy of both counts, they also argued that even if the city violated its own codes or procedures, that alone is not something the court has standing to take action on since the city has home rule authority.
Home rule is a constitutional status that’s automatically granted to all Illinois municipalities with at least 25,000 people. It gives them broad authority to set laws and policies outside of, and even against, many state laws. The city and Northwestern pointed to a number of past court rulings that this authority extends to managing their own rules and procedures, preventing courts from assessing whether home rule cities violate their own procedures unless it amounts to a violation of due process rights.
Attorney John Shapiro, representing the plaintiffs, argued that their claims differ from those past cases because the procedural issue is whether the ordinance actually received enough votes to pass when it was adopted. He said ensuring a zoning ordinance actually meets the necessary vote threshold is at “the core of due process” for the plaintiffs, putting Counts II and III in the court’s purview.
“None of those cases raised constitutional rights,” Shapiro said, referring to case law cited by the city and Northwestern. “Those were all ‘garden variety’-type cases” concerning other internal rules and ordinances, he said.
Later in the hearing, attorney Matthew Klepper for Northwestern rejected that the claims were any different from those tried in the past, pointing to the complaint’s own language, which alleges violations of Evanston’s city code rather than the state or federal constitutions.
“You can’t put constitutional lipstick on something that isn’t constitutional and make it a viable claim,” Klepper said.
When can state law step in?
Count IV was discussed differently due to it being based on state law, but the arguments still centered on the city’s home rule authority. The plaintiffs claim that under a provision in the Illinois Municipal Code, their prior “frontage protest” to the text amendment ordinance should have raised the voting threshold to a two-thirds majority, or six yes votes.
Attorney Kurt Asprooth of Ancel Glink, the city’s outside legal counsel, argued that since the city’s existing zoning code supersedes the state code due to home rule, the city is exempt from the latter’s supermajority requirement. He said the City Council’s rules already list specific instances a supermajority vote is needed in Rule 25, preventing state law from requiring supermajorities in other unlisted situations.
“When the city went through and listed 16 different items that require a supermajority vote,” Asprooth said, referring to the council’s rules, “how can that not be interpreted to exclude a supermajority vote on other items, such as a text amendment?”
Shapiro responded by arguing the city can’t rely on an “exclusion by omission” argument, which he said the Illinois Supreme Court has rejected in past cases. He said state laws can “operate concurrently” with the city’s home rule laws where they aren’t specifically excluded by the city.
“When Evanston did not preclude the protest of a text amendment under the Illinois Municipal Code,” Shapiro said, “when it said nothing whatsoever about it in its zoning ordinances, Illinois law fills in the gap.”
Shapiro declined to argue on the city’s concurrent motion to strike the plaintiffs’ demands for damages, attorneys’ fees and a jury trial, electing to stand on the March 21 response brief.
Judge Meyerson said she will deliver an oral ruling on the dismissal motions in a Zoom hearing at 11 a.m. Friday.
Copies of major filings in the Ryan Field concerts lawsuit can be viewed on Document Cloud.
The majority vote requirement in § 6-3-4-6(F) is a majority vote of the members of the Council voting, not all members elected.
The count with respect to whether the measure actually passed should not be dismissed. Such cases are a valid cause of action and have been litigated, as in Carlyle v. Nicolay, 363 Ill. 562, a 1929 Illinois Supreme Court decision in a case where an ordinance was purportedly passed by a tie vote, with the mayor casting the tiebreaker, objected to as not a valid ordinance.
Here, a clear Evanston ordinance says that a zoning ordinance cannot be passed except by a “majority of the Council.” Not a majority of a quorum — a majority of the Council. Only two things are possible: “the Council” refers to the 9 Council members or “the Council” refers to a body of 10, that is, the nine “councilmembers” (formerly called aldermen) plus the mayor. Both the Code itself and Council rules say that it’s the latter, but either way, the 4 aldermanic votes for the rezoning were not a majority of 9, and adding Mayor Biss’s vote did not give the measure a majority of 10. The rezoning did not garner a majority of votes of the Council.
The majority requirement is a legacy of both longstanding Illinois municipal law, as the 1929 case above indicates. For decades a “majority of all the members elected” in a city council was necessary to pass a municipal ordinance. Hibbard v. Chicago, 173 Ill. 91, 97 (1898). The Evanston requirement likely dates to when the Evanston City Council had 18 aldermen and a mayor. It is sensible to avoid, in zoning, a situation where a measure lacking majority support can slide through by virtue of an alderman or two being absent, e.g., passing 8-7. Zoning changes are often big deals, impacting hundreds of residents and millions of dollars in property value. They should not squeak by with less than a majority. Requiring a majority of the entire body of 10, as the Council is now constituted, is quite reasonable. Otherwise as few as three Councilmembers could rezone something, if a quorum of 6 were present and one abstained!
The argument of the City and NU, that the mayor can contribute the majority-making vote to a “Council” of 9 to which he does not belong except when it is is a body of 10, for which 5 votes are not a majority, defies logic and any internal consistency. One phrase cannot mean two things within the same sentence.
Evanston Code and rules define the Council as the 9 aldermen plus the mayor. Ten people. Five is not a majority of ten. That should be the end of discussion. Home rule does not mean that a city gets to make up its own math.
I can’t believe that one of the City’s legal arguments is that they’re allowed to break their own laws. How do we have a functional democratic society if our law makers will not abide by the law?