Judge agrees Naperville Smart Grid referendum shouldn’t be on ballot
By Hank Beckman For The Sun January 24, 2012 6:10PM
Jennifer Stahl presents petitions calling for a referendum on the Smart Grid project to Naperville Record Management Team Leader Pam LeFeber Tuesday afternoon at the Naperville Municipal Center. | Hank Beckman~For Sun-Times Media
Updated: February 26, 2012 8:11AM
DuPage Circuit Court Judge Bonnie Wheaton Tuesday agreed that a non-binding referendum question on halting Naperville’s Smart Grid Initiative should not appear on the spring ballot.
“This is an unusual case,” she told the parties in handing down her ruling at the courthouse in Wheaton.
She said she was sure the circulators of the petition, members of Naperville Smart Meter Awareness, had acted in good faith, but stressed that the key question was whether the persons signing the petition were registered Naperville voters and in the correct addresses and counties listed.
Citing safety, privacy, and security concerns, the Smart Meter Awareness group has long objected to the $22 million project which will install 57,000 smart meters in Naperville homes and businesses as part of an electrical system upgrade.
The group turned in 4,199 signatures on the petition, but objector Bill Dawe, a pro-Smart Grid ambassador, challenged the validity of the signatures. He also wondered whether the language of the petition, asking voters if they wanted to stop the initiative and dismantle the equipment already in place, was an impermissible two-part question.
The Naperville Electoral Board dismissed the two-part question objection and two other objections, but granted Dawe’s contention that there weren’t enough valid signatures of residents on the petition, which would keep the question off the ballot.
Naperville Smart Meter Awareness Attorney Doug Ibendahl filed for an expedited review of the decision, setting the stage for Tuesday’s courtroom confrontation.
Wheaton acknowledged the hurried nature of the process, but said “there’s a very good reason for that,” namely, that Jan. 24 was the deadline to officially make the March ballot.
Ibendahl has consistently argued that only the city’s Electoral Board was legally able to order a “binder” check of the electoral records of DuPage and Will County. He hammered away at that theme before Wheaton, saying that the records exam and the subpoena to obtain them by Dawe’s attorney were improper.
“Only the board can do that,” he said of the binder check. “They chose not to do so ...”
Ibendahl also said that the Electoral Board examined the records in private to determine that 565 signatures were invalid. He called it a violation of due process and the Illinois Open Meetings Act.
He also referred to an email he recently unearthed through a FOIA request. The communication was from a city employee suggesting that Smart Grid ambassadors challenge the petition signatures. It was copied to City Attorney Margo Ely and City Clerk Pam LaFeber.
Ely presided over the Electoral Board and LaFeber was a voting member.
Saying that it was unknown what else was involved in the exchange, Ibendahl said it proved the city was “already scheming” to have the question knocked off the ballot.
Ibendahl said the objection case was “one of the weakest I’ve ever seen” and stressed that the normal approach to cases like this was to “err on the side of ballot access.”
As expected, Dawe’s attorney, Kevin McQuillan, had an entirely different take on the matter, calling it a “simple, straightforward case.”
As for the records check being improper, McQuillan pointed out that Ibendahl had known from the first meeting of the board what rules governed the proceedings.
He said that it was established that the Electoral Board would rule on offers of proof and make a determination if signatures were valid.
“There was no objection by Mr. Ibendahl,” McQuillan said.
He said that Ibendahl himself had taken a look at the evidence, particularly from DuPage County.
“There were at least 50 people that lived in unincorporated areas” or other towns, McQuillan said. “Apparently the petitioner saw that they were going to lose.”
McQuillan stressed the importance of maintaining ballot integrity and noted that the group could file another petition in November for a referendum.
As for the email communication, McQuillan saw nothing untoward or illegal in it.
“I see nothing ... that raises an eyebrow to me,” he said.
When Ely spoke, she rejected Ibendahl’s entire argument, echoing McQuillan’s argument that Ibendahl offered no objections to the rules when they were decided at the beginning of the hearing.
She stressed that state statute “explicitly allows the records to be used for a government purpose” and that voter records were not private but rather public records.
Ely said that the central fact of the objection was that 565 signatures were invalid, and that the fact of it being a non-binding referendum had no bearing on the legality of the case.
As for the email communication, Ely said “I don’t even remember receiving it” and that it contained nothing to suggest that she or LaFeber were in any way biased.
In ruling in favor of the Electoral Board, Wheaton said that that election law required that only signatures within the boundaries of Naperville should be permitted on the petition.
“There are very good reasons for all the requirements,” Wheaton said, agreeing with Ely that the determining factor was whether the persons who signed the petition were in residence in the counties and the city and were also registered voters.
“There was enough evidence,” she said. “The Electoral Board decision was the correct one.”
Naperville Smart Meter Awareness member Tom Glass spoke after the ruling and pointed out that the email in question was submitted “moments after we turned in our petitions” and said he thought the matter should be referred to the state’s attorney’s office for further investigation.
Neither Glass nor Ibendahl would say for certain that they would file an appeal with the Illinois Appellate Court, but Ibendahl did say, “I don’t see why we wouldn’t.”
Ely was happy with the decision.
“The judge clearly reviewed the record judiciously and expeditiously and made a thoughtful decision after hearing the arguments from both sides,” she said. “She concluded that the Electoral Board made the right decision and it was based on the evidence presented to the board.”
But former City Councilman Dick Furstenau, while not taking a position on the case or the value of the Smart Grid Initiative, seemed less than pleased that the matter had come so far in the process.
“Let’s just say that however number of registered voters there actually were (3,634), they shouldn’t be ignored,” he said.