Ignorantia legis neminem excusat! – Every judge ever
After it became clear the Elburn, Illinois, village board passed two illegal ordinances in one short month, I quickly discovered they’re not nearly alone in this reckless regard. Given the shifting legal sands, it’s difficult to determine exactly which suburbs have passed anti-migrant laws, but in addition to Elburn’s errant statute, Hinsdale, Broadview, and Wilmington have all installed similarly doomed measures.
Why? Because none of those entities are home rule.
If you think that means our statute happy home rule municipalities like Matteson, South Barrington, Aurora, and Kankakee are out of the woods, think again. The Constitution’s pesky interstate commerce clause generally frowns on the kind of scenario where local gendarmes can stop random buses to ask that wartime question, “papers please.”
And that’s just the tip of the overreach iceberg.
Imagine if Elburn started stopping Greyhounds full of white-haired Wisconsin old ladies to insist they provide ID. Talk about an insurrection! But while we’ll get to our central failure-to-begin-to-even-consider-the-rules motif shortly, considering this general Collar County city council illiteracy, let’s tackle the surprisingly simple question of home rule before we continue.
Per Tuesday’s column, Illinois instituted home rule in 1971 as a means of providing larger municipalities with the latitude to more efficiently govern themselves. Imagine if cities the size of Aurora and Elgin were forced to rely on the legislature to regulate internal issues like housing and businesses. It would turn into a nightmare for both sides.
So, an Illinois city can become home rule under either of the following circumstances. The first and most common method is for their population to exceed 25,000. The second and more difficult possibility is to pass the prospect by referendum like Matteson, South Barrington, and Kankakee have all done.
Conversely, in the rare case of a municipality falling below the 25,000 mark, as Westmont did a few years ago, they lose those home rule powers. And just as the citizenry can vote home rule in, they can vote it out by referendum in any size city.
If you recall, in 2018 a Batavia anti-tax group tried to ditch their home rule only to watch the ballot question go down in flames. But when you consider the time and money the city had to put into defeating that measure, Batavia’s been a lot more sedate on the taxation front since then.
A local city manager perfectly explained the difference between home rule and non-home rule entities:
- A non-home rule community can only exceed state law if the legislature explicitly grants them the power to do so.
- A home rule community can exceed state law unless the legislature explicitly forbids them from doing so.
So, Elburn CANNOT increase distracted driving fines, nor can they regulate migrant buses because they’re not home rule and Springfield hasn’t issued a provision that would permit them to do either. Conversely, Elgin can implement and enforce their own massage business regulations, but when Geneva just shut down the offending “business” at 410 East State, they had to charge them with prostitution and get the Illinois Office of Professional Standard involved to make it happen.
It’s a very basic distinction that every last city councilperson should be able to recite without a second’s hesitation.
Considering the power that comes along with it, why don’t all Illinois communities vote for home rule? Because it also provides those same village boards with the unfettered taxation power without asking their citizens via referendum first.
Geneva would LOVE to be a home rule community, and the more progressive city council elements are privately making all sorts of pronouncements in that regard. But they don’t dare take it to referendum because they know it will never pass (at least not as long as I’m still breathing). And the odds of my hometown (population 21,247) crossing the 25,000 mark are slim to none, particularly after we’ve lost 3,000 residents since 2009 and that downtrend persists.
That’s why Elburn’s distracted driving ordinance failed and their migrant bussing statute won’t hold up to the most minor court challenge.
But even if Elburn was home rule, their migrant law is so absurdly draconian that it doesn’t begin to pass the Constitutional laugh test. Here’s the gist of Elburn’s, and all of the other suburban statutes:
- Intercity bus operators must apply, in writing, at least 5 days in advance before they drop off passengers
- They must provide the names of each passenger within that same timeframe
- They must provide a background check on each passenger as well as the driver.
- They must receive written authorization from the municipality in order to proceed
- Only one bus per operator per day is allowed
Apply that to a busload of Chicago black folks taking a day trip to Ream’s Market and we’d all be cringing in utter disbelief. Just because you can pass a law doesn’t mean you should!
This, once again, begs the question, where’s Kane County state’s attorney Jamie Mosser? Apparently, she’s far too busy pursuing a Campton Hills trustee for a 22-year-old DUI to inform Aurora and Elburn that their anti-migrant bussing laws blatantly break the law.
Just like ignorance of the law is never a courtroom defense, I have to call into question the competence and minimal dedication of any mayor, city council, and especially village attorney who doesn’t begin to understand these home rule versus non-home rule basics.
But what bothers me even more than that potential incompetence (or indifference) is those home rule communities that display such a blatant disregard for the rule of law they fail to even consider that there might be a set of greater rules that apply to them. Didn’t we all have to pass that high school Constitution test to graduate?
And if the people who purport to govern us consistently fall short in this regard, then what hope is there for the rest of us?
