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updated: 3/7/2012 2:05 PM

Appeals court declines to hear Naperville smart meter case

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It is now almost a certainty that Naperville voters will not be casting ballots on any referendum questions pertaining to the installation of smart meters.

The Second District Appellate Court on Tuesday dealt another blow to smart meter opponents by refusing to hear an appeal of a DuPage Circuit Court ruling that kept an advisory referendum off the March 20 ballot.

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DuPage Judge Bonnie Wheaton ruled Jan. 24 that the Naperville Electoral Board made the correct decision in denying the referendum a place on the ballot. The petitioners, she agreed, lacked the required number of signatures of registered Naperville voters to validate the question.

According to the electoral board's Jan. 19 ruling, 3,758 signatures of registered voters were required. Petitioners submitted 4,199, but board members disqualified 565 of them because they were not from registered voters.

The anti-smart meter group, which opposes the use of wireless meters to track electricity use, attempted to ask voters, "Shall the City of Naperville immediately and permanently stop the implementation of the $22 million smart meter project and dismantle all related equipment?"

Resident William Dawe filed an objection to the referendum petitions Dec. 27, alleging they contained signatures from people living outside Naperville and that the proposal contains a two-part question, both of which made it invalid.

According to Tuesday's four-page ruling, the appellate court dismissed the case without even considering the issues addressed in the original case. Instead, the court stated that an entire class of voters would be disenfranchised should the question be placed on the ballot because military, overseas and early voting ballots already have been printed and sent to the appropriate places.

"We would be extremely skeptical of any remedy that disenfranchises an entire class of voters (particularly troubling is that the class that would be disenfranchised in this case includes members of the military serving overseas). In essence, petitioners propose that the referendum be decided by a poll of a subset of the electorate, which would then be assumed to be representative of the entire electorate," the decision states.

"The assumption that those voting would be representative of those who were disenfranchised is a dubious one at best. Voters physically residing in Naperville may not share identical concerns to those residents serving in the military or otherwise residing overseas."

Dawe's attorney, Kevin McQuillan, called the decision his third victory in the case.

"It's absolutely a victory because the electoral board told them they didn't do it right, the circuit court told them they didn't do it right and the appellate court just told them to stop wasting time," McQuillan said. "They said, 'We're not touching it. There's nothing here for us to deal with.'"

The opponents attorney, Doug Ibendahl, said he is willing to take the case to the Illinois Supreme Court but said he fears the election would be over before the case got on the court's schedule.

"No one in Naperville is going to have a voice in this because the city decided to misappropriate taxpayer dollars long enough to keep it off the ballot," Ibendahl said. "Is that what our troops overseas are fighting for? I don't think so."

Local election board attorney Margo Ely interpreted the ruling to say the court found no wrongdoing as alleged by Ibendahl.

"It is apparent that the Appellate Court did not view opponents' allegations of misconduct, bias and improper procedure as meritorious. The Appellate Court made the right decision, as did the Circuit Court and the Electoral Board," Ely said in a written statement.

The city continues to respond to eight appeals and a federal lawsuit filed by representatives of the Naperville Smart Meter Awareness Group. The appeals are pending with the Illinois attorney general; one matter specifically being reviewed is a complaint that the local electoral board violated the Open Meetings Act by allegedly meeting in secret to review voter records. The board has filed a response to this complaint stating specific dates and times that individual board members reviewed submitted evidence, which is not a violation of the Open Meetings Act.

"The Board members legally reviewed the evidence submitted," Ely said. "The allegations have no merit and in due course, justice will again prevail. I remain confident that the federal lawsuit will also be dismissed by the court system."

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