Two new developments in a City Electoral Board case set for review by a district court Tuesday morning, both regarding an outside attorney’s involvement in the case.
The attorney, Dan Bolin, from the firm Ancel Glink drew criticism during the proceedings, culminating in a standoff between the Board’s chair, Mayor Steve Hagerty, and former Governor Pat Quinn, who represented petitioners, concerning the scope of Bolin’s representation. Quinn had interrupted delivery of the decision to ask if Bolin had pre-written the decision prior to the hearing.
Case Background. The case was brought by three Evanston residents, including former 7th Ward alderperson Jane Grover, who filed an objection against a ballot measure proposing a process that would require Council to consider and take action on ordinance proposals submitted by residents via voter approval. The measure was petitioned by 3,871 City electors.
● Objectors argued the City should deny the petition because State law did not allow binding referenda on a local question of public policy, and that the question would confuse voters.
● Quinn countered with a motion to dismiss the objection because he argued objectors themselves had not complied with State Election Code mandates requiring an objection “state the interest of the objector[s].”
● Objectors answered that their interest was inferred because they were Evanston voters.
“Before we get to the decisions,” Quinn said, “we’ve learned…that apparently you wrote the decision before the hearing. Is that true?”
The Mayor, responding on Bolin’s behalf, said the Board had received multiple materials based on various outcomes of the hearing. City Clerk Devon Reid, also a Board member, noted however, that the only comprehensive findings they received was that finding against petitioners. Quinn requested, then demanded the Board disclose the decisional materials, which the Mayor asserted were attorney-client privileged. Quinn and members of the public asked the identity of Bolin’s client in the matter.
“This Board,” the Mayor said, “the Board is the client.”
Bolin’s client, in actual fact, was not the Board, it was the municipal corporation. And the scope of his engagement in the matter was, specifically, to consult with the City on the legal issues pertaining to the initiative itself (which primarily affected his client’s corporate authorities, the City Council).
Conversely, Bolin’s corporate representation likely precluded his dually serving to advise the Board within its capacity as a hearing body, according to the Ill. State Bar, where the Board’s “responsibilities to a third party (the public)” and “duty of impartiality” owed to parties appearing before it, create a concurrent conflict with his client duties under State attorney regulations requiring him to “subordinate the interests of others to those of the client.”
The Board, which also included Ald. Rainey, was advised by Bolin, who also participated in the Board’s questioning and closed deliberations. During questioning, Quinn objected when Bolin began supplementing objector’s arguments. “You can’t make up their objection for them,” Quinn said. “They have the burden under law to carry out their objection.”
The Mayor asked objectors if they had consulted with an election attorney in preparing their petitions. Grover, herself an attorney, answered that they had not. The Mayor then turned to Quinn. “Do you think the objectors filed a frivolous claim?”
“I think it is without merit with respect to its substance,” Quinn replied.
Bolin later asked Quinn “couldn’t you infer the interest of the objectors?”
“No, I don’t think you can because the word ‘interest’…is not mentioned at all,” Quinn said, adding, “Ballot access is a fundamental right in a democracy, it’s not something to be trivialized…And the Board should stand up for that right.” (Quinn himself had brought the idea for the referendum to Evanston residents last year.)
“Isn’t it ironic,” the Mayor posed, “a group could come in from outside of Evanston, push for certain referendum…some residents in Evanston could object to it, file an objection on their own without—because they couldn’t afford it or for any other reason—consulting an election attorney, and have that objection dismissed? Let’s just use reparations for example…group comes in, puts together a whole referendum that says ‘should Evanston terminate its reparations fund?'”
“Excuse me,” Rainey asked, “what does this have to do with anything?”
“Just to answer that question,” the Clerk said, “at least 2700 registered voters of Evanston would have to sign that anti-reparations referendum…so even if an outside group did come in, ultimately Evanston voters are the ones who determine if it gets on our ballot and if they support it or not.”
Following the Board’s 2-1 votes, with Reid in dissent, first to deny Petitioners’ motion to dismiss the objection, and then to sustain the objections, the Clerk appeared to inadvertently disclose the City’s unspoken practice of pre-writing decisions in cases before its Boards, in saying he hoped there could be a more balanced presentation of parties’ positions in the future. Though his comments received applause from attendees, Quinn apparently did not immediately catch them. Once alerted, following public comment, Quinn halted the proceedings to ask if it was true, which the Mayor confirmed. “How can you call this an unbiased proceeding?” Quinn asked. “He had already written your decision and then he prosecuted it on behalf of the objectors.”
The Mayor said the Board had received a number of decisional materials, owing to the expediency of the matter. Quinn requested the materials be disclosed. The Mayor said they were attorney-client privileged.
“He’s paid by public money, and you’re a public agency,” Quinn continued. “The idea that you can hide this material that’s public to this hearing is preposterous. We’re entitled to know what he was doing on behalf of them.”
The Clerk made a motion to waive privilege over the materials, again ending in a 2-1 split, with the Mayor and Rainey voting not to waive the privilege.
The 20-page decision served to parties included 12 pages of pre-written of Bolin’s presupposed “findings” the Board would make during the hearing—none of which Board members themselves addressed during the hearing. In filling in the blanks of the decision itself, however, Bolin apparently transposed the votes, providing that the Board had approved Quinn’s motion to dismiss the objection, which then rendered the remaining votes inapplicable.
At the time Evanston Leads obtained the decision, it had already been signed and certified by the Mayor, and already filed for judicial review by Petitioner-Plaintiff Allison Harned. After being alerted to the error, the Mayor responded by email that, “based on the record and the rest of the decision, I suspect the court will view this as a scriveners error.” Harned did not provide comment, but noted the public had paid $225 per hour for Mr. Bolin.
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