Referendum Filed Late
Why did the County file two different Auditor Referendums?
The County Clerk filed the auditor referendum on August 22nd. On August 26th, a Community Advocate discovered that the ‘wrong’ referendum had been filed and informed the Executive Director of the Peoria County Election Commission (PCEC). The County Clerk then filed the ‘correct’ auditor referendum on August 26th and the Executive Director wrote the words “nunc pro tunc” on the second filing per instruction of the State’s Attorney’s office.
Timeline
“Complicated Path”
It appears that the County was considering two different auditor referendum ballot language – one version with an ‘effective date of December 1, 2024’ and another version with no effective date and ‘This would be a cost savings of approximately $150,000 annually’ wording. There was an August 11, 2022 Peoria County Board Meeting Agenda available on August 6th at the Peoria County Agenda Center portal with the (2024) language. This link became unavailable and on August 11th at 12:52 pm, the Agenda Brief was changed to the ($150,000) language. Several County Departments seem to be involved in the creation, editing, delivery and posting of County Board Agendas and perhaps all employees were not in the same communication loop with the 12:52 pm Agenda Brief update. Please remember that if the County had a referendum with the (2024) language, that would likely impact the County’s ability to file the Motion to Stay using that language in the Auditor vs. County lawsuit. It is a real mess.
Open Meetings Act Violations
When is the deadline for placing a referendum question on November 8 ballot?
Question from Peoria County Administrator to Peoria County Election Commission Executive Director.
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Monday, August 22.
Answer from Peoria County Election Commission Executive Director to Peoria County Administrator.
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County Clerk Files First Auditor Referendum
County Clerk files Auditor Referendum for the General Primary Election to be held on November 8, 2022 with ballot language – “Shall Peoria County eliminate the office of the internal County Auditor, effective December 1, 2024 because Peoria County has an external auditor as required by state law?
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Community Advocate Discovers ‘Wrong’ Auditor Referendum Filed
On August 26th, Community Advocate discovers (2024) ballot language auditor referendum had been filed and informs PCEC Executive Director about this situation. Please note that the County had no idea that they had filed the wrong referendum until informed.
Community Advocate discussed with Executive Director about the deadline for filing an objection to the ‘wrong’ filing and Director states that it is five business days after the date filed (August 22nd) which was August 29th. Community Advocate indicates that an objection will be filed.
Objection Refused by Election Commission
On August 29th, Community Advocate presents original and two copies of objection to the Executive Director who refuses delivery of these documents.
“Per instruction from the Peoria State’s Attorney’s Office this objection has not been accepted. The statute does not provide for a challenge in this situation.”
Objections can be filed for candidate’s petitions or petitions not for referenda resolution from local units of government. Referenda resolutions are challenged via the court.
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County Clerk Files Second Auditor Referendum
On August 29th, Community Advocate learns that a second Auditor Referendum has been filed and asks for a copy from the Executive Director. Community Advocate asks if this is legal. Executive Director does not like this situation, however is doing what she was instructed to do per the State’s Attorney’s office, to write ‘nunc pro tunc’ on the second auditor referendum which was filed on August 26th at 4:28 pm for the first filing August 22nd at 2:10 pm. The August 26th second filing is four days past the August 22nd deadline.
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“nunc pro tunc”
Legal definition of Nunc Pro Tunc from thefreedictionary.com
[Latin, now for then.] When courts take some action nunc pro tunc, that action has retroactive legal effect as though it had been performed at a particular, earlier date.
The most common use of the nunc pro tunc is to correct past clerical errors, or omissions by the court, that may hinder the efficient operation of the legal system. For example, if the written record of a trial court’s judgement failed to correctly recite the judgement as the court rendered it, the court has the inherent power to change the record at a later date to reflect what happened at trial. The decision, as corrected, would be given legal force from the time of the initial decision so that neither party is prejudiced, or harmed, by the error. The purpose of nunc pro tunc is to correct errors or omission to achieve the results intended by the court at the earlier time. (emphasis added)
NUNC PRO TUNC, practice. This phrase, which signifies now for then, is used to express that a thing is done at one time which ought to have been performed at another. Leave of court must be obtained to do things nunc pro tunc, and this is granted to answer the purposes of justice, but never to do injustice. A judgement nunc pro tunc can be entered only when the delay has arisen from the act of the court. 3 Man. Gr. & Sc. 970. Vide 1 V. & B. 312; 1 Moll. R. 462; 13 Price., R. 604; 1 Hogan. R. 110.
Judge Mack ruled that the County had no authority to use 'nunc pro tunc.' Circuit Court of the 10th Judicial Circuit Peoria County, Illinois, No. 22 CH 28. Circuit Judge James Mack on October19, 2022.
County Claims the Second Filing is not late
If the County can file the auditor referenda resolution at any time, then why would the County use a judicial term for correcting a past clerical error or omission by the court when this is not an error of the court?
The error is the County Clerk’s by filing the wrong document by the August 22nd deadline.
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Referendum Ballot Language
Did the County Clerk actually file the wrong document? The County Administrator instructed County staff to replace the Agenda Brief – ballot language on August 11th County Board Meeting Agenda and packet on August 11th at 12:34 pm. Which ballot language (2024) or ($150,000) was the County Board actually voting on?
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