Illinois Road & Transportation Builders Ass'n v. County of Cook

2021 IL App (1st) 190396
THIRD DIVISION
March 3, 2021
No. 1-19-0396
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
ILLINOIS ROAD AND TRANSPORTATION ) Appeal from the Circuit Court of
BUILDERS ASSOCIATION, FEDERATION OF ) Cook County.
WOMEN CONTRACTORS, ILLINOIS )
ASSOCIATION OF AGGREGATE PRODUCERS, )
ASSOCIATED GENERAL CONTRACTORS OF )
ILLINOIS, ILLINOIS ASPHALT PAVEMENT )
ASSOCIATION, ILLINOIS READY MIXED )
CONCRETE ASSOCIATION, GREAT LAKES )
CONSTRUCTION ASSOCIATION, AMERICAN )
COUNCIL OF ENGINEERING COMPANIES )
(ILLINOIS CHAPTER), CHICAGOLAND )
ASSOCIATED GENERAL CONTRACTORS, ) No. 18 CH 2992
UNDERGROUND CONTRACTORS ASSOCIATION )
OF ILLINOIS, and ILLINOIS CONCRETE PIPE ) Honorable Peter Flynn,
ASSOCIATION, ) Judge Presiding
)
Plaintiffs-Appellants, )
)
v. )
)
THE COUNTY OF COOK, a Body Politic and )
Corporate, )
)
Defendant-Appellee. )
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice Burke concurred in the judgment and opinion.
OPINION
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¶1 In November 2016, Illinois voters approved an amendment to the Illinois Constitution,
adding to the revenue article a new section 11, titled “Transportation Funds” (the Amendment).
Roughly sketched, the Amendment requires that funds collected from transportation-related
taxes and fees be spent only for transportation purposes.
¶2 Plaintiffs, an amalgamation of trade groups and associations that represent a variety of
sectors in the transportation planning and construction industry, sued the County of Cook
(County), claiming the County violated the Amendment by diverting tax revenues protected by
the Amendment to non-transportation uses. Plaintiffs identified six different taxes the County
imposed related to transportation, all of whose revenues, they say, should have been sequestered
and used only for transportation-related purposes. Instead, those moneys were placed into the
County’s Public Safety Fund for non-transportation purposes to fund the county courts, jails, the
sheriff’s office, and like items.
¶3 The trial court dismissed the complaint, finding that plaintiffs lacked standing to sue and
that, in any event, the complaint failed to state a violation of the Amendment.
¶4 We disagree as to standing. Plaintiffs have standing to challenge the County’s alleged
violation of the Amendment. But we agree, albeit for different reasons, that the complaint fails to
state a constitutional violation. We thus affirm the trial court’s judgment.
¶5 BACKGROUND
¶6 In the November 2016 general election, voters across Illinois were presented with an
initiative to amend the Illinois Constitution to protect funds generated from transportation-related
taxes from being spent for any purposes other than transportation-related ones. Passage of the
Amendment required approval of either three-fifths of those voting on the question or a majority
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of those voting in the election. See Ill. Const. 1970, art. XIV, § 2(b). The Amendment easily
cleared that hurdle, garnering the support of nearly 80% of those who voted on the question.
¶7 On March 6, 2018, plaintiffs—a group of business and trade associations—filed this suit
for declaratory and injunctive relief against the County. The complaint alleged that, “to plug gaps
in its budget,” the County was diverting “revenue from transportation-related taxes and fees to
the County’s Public Safety Fund,” where it was then spent on non-transportation-related
purposes in violation of the Amendment. Plaintiffs identified the following sources of revenue
that were unconstitutionally diverted from transportation uses:
(1) the Cook County Home Rule County Use Tax Ordinance (see Cook County
Code of Ordinances § 74-270 et seq. (adopted Feb. 16, 2011);
(2) the Cook County Retail Sale of Gasoline and Diesel Fuel Tax Ordinance (see
id.§ 74-470 et seq.);
(3) the Cook County New Motor Vehicle and Trailer Excise Tax Ordinance (see
id. § 74-230 et seq.);
(4) the Cook County Home Rule Use Tax Ordinance for Non-Retailer Transfers
of Motor Vehicles (see id. § 74-595 et seq. (adopted Nov. 15, 2011));
(5) the Cook County Wheel Tax on Vehicles Ordinance (see id. § 74-550 et seq.
(adopted May 21, 2020)); and
(6) the Cook County Parking Lot and Garage Operations Tax Ordinance (see id.
§ 74-510 et seq. (adopted July 17, 2013)).
¶8 For ease of references, we will refer to these taxes listed above, collectively, as the “Cook
County Transportation Taxes.”
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¶9 The complaint alleged that, despite the fact that each of these taxes was a “transportation-
related tax within the meaning of [the Amendment],” the County was “deposit[ing] all revenue”
from the taxes listed above “in the County’s Public Safety Fund.”
¶ 10 The Public Safety Fund, according to the complaint, funds operations of the County’s
criminal justice system, including the sheriff’s office, the state’s attorney, the department of
corrections, and the clerk of the circuit court. The complaint alleges that “[t]he Public Safety
Fund is not a transportation-related purpose within the meaning of Article IX, Sections 11(b) or
(c) of the Illinois Constitution.”
¶ 11 The County moved to dismiss the complaint, both for failure to state a claim and on
standing and justiciability grounds. The trial court agreed with the County on both points, finding
that plaintiffs lacked standing and that the complaint did not state a constitutional violation. The
court thus dismissed the complaint. This appeal followed.
¶ 12 ANALYSIS
¶ 13 I
¶ 14 A
¶ 15 Our first question is whether plaintiffs have standing to challenge the County’s alleged
constitutional violation. A dismissal based on lack of standing is entered pursuant to section 2-
619(a)(9) of the Code of Civil Procedure. See 735 ILCS 5/2-619(a)(9) (West 2018); Glisson v.
City of Marion, 188 Ill. 2d 211, 220 (1999).
¶ 16 A complaint need not allege facts establishing standing. International Union of Operating
Engineers, Local 148 v. Illinois Department of Employment Security, 215 Ill. 2d 37, 45 (2005).
In Illinois, lack of standing is an affirmative defense, placing the burden on the defendant to
“plead and prove lack of standing.” Id. Thus, when “standing is challenged by way of a motion
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to dismiss,” the usual principles applicable to section 2-619 motions govern: “[A] court must
accept as true all well-pleaded facts in the plaintiff’s complaint and all inferences that can
reasonably be drawn in the plaintiff’s favor.” Id. Appellate review is de novo. Id.
¶ 17 The standing doctrine assures that parties have a sufficient stake in the outcome of the
controversy. Scachitti v. UBS Financial Services, 215 Ill. 2d 484, 493 (2005). But “it should not
be an obstacle to the litigation of a valid claim.” People v. $1,124,905 U.S. Currency & One
1988 Chevrolet Astro Van, 177 Ill. 2d 314, 330 (1997). The plaintiff’s claimed injury must be
“(1) distinct and palpable; (2) fairly traceable to defendant’s actions; and (3) substantially likely
to be prevented or redressed by the grant of the requested relief.” Wexler v. Wirtz Corp., 211 Ill.
2d 18, 23 (2004).
¶ 18 Plaintiffs allege two forms of standing. The first is associational standing, as plaintiffs are
all nonprofit trade associations representing various aspects of the construction industry.
¶ 19 Associational standing refers to the ability of an association to sue as a representative
body on behalf of its members. The doctrine “is firmly established in federal law” and was first
adopted in Illinois in International Union, 215 Ill. 2d at 48. Our supreme court expressly adopted
the test for associational standing from the United States Supreme Court in Hunt v. Washington
State Apple Advertising Comm’n, 432 U.S. 333 (1977). See International Union, 215 Ill. 2d at
51-52.
¶ 20 In Hunt, 432 U.S. at 343, the Supreme Court articulated a three-part test to determine if
an association has standing to sue on behalf of its constituent members. An association will have
standing to sue on behalf of its members when “(a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s
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purpose; and (c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Id.
¶ 21 The County does not dispute that plaintiffs satisfy Hunt’s second and third requirements.
We thus confine our analysis to a single question: whether the association plaintiffs have alleged
“ ‘that [their] members, or any one of them, are suffering immediate or threatened injury as a
result of the challenged action.’ ” International Union, 215 Ill. 2d at 46 (quoting Warth v. Seldin,
422 U.S. 490, 511 (1975)).
¶ 22 Which means that we return full circle to general standing principles. That is to say, have
the members of plaintiffs’ organizations suffered an injury that is “(1) distinct and palpable;
(2) fairly traceable to defendant’s actions; and (3) substantially likely to be prevented or
redressed by the grant of the requested relief?” Wexler, 211 Ill. 2d at 23. And given the burden of
proof on this affirmative defense, the real question is, has the County established that plaintiffs
have not suffered such an injury?
¶ 23 We will briefly examine each of the plaintiff associations and their claim of injury
suffered by their individual members.
¶ 24 Plaintiff Illinois Road and Transportation Builders Association (IRTBA) is a trade
association consisting of “more than 350 member firms who design, build, and maintain Illinois’
highways, transit systems, railways, and aviation systems.” “Many” of its members “are based in
Cook County and contract with the County to perform construction work on transportation-
related project within the County.”
¶ 25 Plaintiff Federation of Women Contractors (FWC) “consists of more than one hundred
women and women owned firms working in the construction industry, including general and
specialty contractors, subcontractors, architecture and engineering firms, and suppliers
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representing every facet and component of construction,” the “majority” of which “are based in
Cook County.”
¶ 26 Plaintiff Illinois Association of Aggregate Producers (IAAP) is a not-for-profit trade
association that represents “every sector of Illinois’ non-coal aggregate mining industry.” IAAP
members are responsible for producing “more than 90 percent of Illinois’ aggregate and
industrial minerals at more than two hundred plants and facilities in seventy counties throughout
Illinois, including Cook County.” “Most of the aggregate material produced by IAAP members
is utilized in road construction, including crushed aggregate in concrete and asphalt pavements
and drainage bases under roads, sewers, parking lots, and sidewalks.”
¶ 27 Plaintiff Associated General Contractors of Illinois (AGCI) “is one of the largest heavy-
highway construction trade associations in Illinois.” AGCI “represents highway, heavy, and
utility contractors” and “has more than one hundred active, associate, and affiliate members,
including members that are based in Cook County and that conduct business with Cook County.”
¶ 28 Plaintiff Illinois Asphalt Pavement Association (IAPA) is a trade association with “nearly
two hundred members, including sixteen members that produce or supply hot mix asphalt within
Cook County and approximately ninety members that supply material, equipment, or services
directly to Cook County or to the IAPA’s plant mix members working in Cook County.”
¶ 29 Plaintiff Illinois Ready Mixed Concrete Association (IRMCA) is a trade association
representing “nearly 150” companies, including “multiple firms that supply concrete in Cook
County.”
¶ 30 Plaintiff Great Lakes Construction Association (GLCA) “represents more than two
hundred member firms in twenty-seven work categories in the construction industry,” “including
approximately one hundred members who are based in Cook County.”
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¶ 31 Plaintiff American Council of Engineering Companies, Illinois Chapter (ACEC), is a
“Statewide association dedicated solely to the interests of Illinois consulting engineering firms.”
¶ 32 Plaintiff Chicagoland Associated General Contractors (AGC) is an association of general
contractors whose membership includes “more than eighty” firms based in Cook County.
¶ 33 Plaintiff Underground Contractors Association of Illinois (UCA) is a not-for-profit trade
association that “represents more than two hundred contractors and associate member companies
in the sewer, water, utility, and underground industries throughout Illinois, including in Cook
County.”
¶ 34 Plaintiff Illinois Concrete Pipe Association (ICPA) is a not-for-profit trade association
composed of “concrete pipe producers and affiliated companies serving the Illinois sewer and
culvert market, including members based in Cook County.”
¶ 35 As to each one of these association plaintiffs, the complaint alleges that its members “are
suffering economic harm due to the County’s ongoing violations of [the Amendment]”—more
specifically, the County’s diversion of money that allegedly must be spent for transportation-
related purposes but, instead, is being transferred into the County’s Public Safety Fund.
¶ 36 The injury the plaintiff members allege is not some “ ‘generalized grievance common to
all members of the public.’ ” Alliance for the Great Lakes v. Department of Natural Resources,
2020 IL App (1st) 182587, ¶ 32 (quoting Greer v. Illinois Housing Development Authority, 122
Ill. 2d 462, 494 (1988)). Their injury is “distinct and palpable.” Wexler, 211 Ill. 2d at 23. They
are alleging the loss of business opportunity by virtue of a diminution in the number of projects
put out to bid in Cook County. Economic harm has long been considered a sufficient injury to
confer standing. See Greer, 122 Ill. 2d at 493; International Union, 215 Ill. 2d at 51 (denial of
unemployment benefits was sufficient injury to confer standing on individual union members).
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¶ 37 The remaining, interrelated two prongs, whether the members’ injuries are “fairly
traceable” to the County’s allegedly unconstitutional conduct, and whether a ruling in their favor
is “substantially likely” to redress their injuries (Wexler, 211 Ill. 2d at 23), is where the parties do
battle. We say they are interrelated because the case law, as we will see, sometimes considers
them in tandem, and for good reason. Sometimes, perhaps often, the same causal link that
connects the defendant’s misconduct to the plaintiff’s injury works likewise in reverse, such that
judicial elimination of that misconduct would heal that injury.
¶ 38 Much of the County’s argument against standing, in fact, interweaves the traceability and
judicial-redress prongs in a manner that we could summarize in one word—speculation.
Plaintiffs can only speculate that, had the transportation money not been diverted, the County
would have implemented public transportation projects; they can only speculate that, even if the
County had announced such projects, any one of their members would have been awarded the
work; they can only speculate that, if they win this lawsuit and force the County to spend all this
recovered and future money on transportation projects, they will be awarded any of that work.
¶ 39 Plaintiffs’ response is that the County is weaponizing its unconstitutional behavior to
insulate itself from judicial review: divert transportation funds, thereby fail to fund new
transportation projects, and then claim that the firms that would have been eligible to bid on this
work lack standing because … they can’t point to any projects they lost out on. Under that
circular theory, say plaintiffs, nobody could ever challenge the County’s alleged unconstitutional
diversion of funds. And if anyone would be motivated to force the County to comply with the
constitution and sequester transportation tax revenue for transportation purposes, who more so
than the firms that would financially profit from the resulting transportation projects?
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¶ 40 We agree with plaintiffs’ view of standing. To be sure, standing cannot be founded on a
“highly attenuated chain of possibilities.” Clapper v. Amnesty International USA, 568 U.S. 398,
410 (2013). But neither is certainty required. Particularly when the injury to a plaintiff is the loss
of opportunity to obtain a benefit due to the government’s failure to perform a required act—
here, sequestering transportation funds—it is rarely possible to know with any confidence what
might have happened, had the government performed that act, much less what precisely will
happen in the future if the improper conduct is corrected. If such certainty were required, the
doctrine of standing would substantially reduce, if not altogether eliminate, entire categories of
lawsuits. And, as we explain below, that is not how we read the case law.
¶ 41 For example, in West Virginia Ass’n of Community Health Centers, Inc. v. Heckler, 734
F.2d 1570, 1572-73 (D.C. Cir. 1984), the plaintiffs—a hospital association and one of its
members—sued the federal government, alleging that its formula for awarding block grants to
states under a federal statute “unlawfully deprived the State of West Virginia of monies to which
it was entitled,” to the tune of nearly $300,000. The governmental defendant claimed the
plaintiffs lacked standing, as they “failed to demonstrate that a judicial decision mandating an
increase in West Virginia’s [block grant] funding would redound to their benefit.” Id. at 1574.
The court flatly rejected that argument, holding that “once appellants demonstrated that they
would qualify to receive these funds, they need not shoulder the additional burden of
demonstrating that they are certain to receive funding.” (Emphases added.) Id. at 1576.
¶ 42 Likewise, in National Ass’n of Neighborhood Health Centers, Inc. v. Mathews, 551 F.2d
321, 324 (D.C. Cir. 1976), the plaintiff, a national organization of community health centers,
sued to force the Department of Health, Education and Welfare (HEW) to recover money that the
department allegedly spent in violation of a federal statute. On appeal, HEW argued that the
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plaintiff lacked standing to challenge the allegedly illegal transfers because the plaintiff did not
allege “ ‘that [the] illegal transfer of funds affected any of its members.’ ” Id. at 329. The court
rejected that argument:
“The less that is recovered in the four disputed states, the less will be available to the
present applicants, including the [plaintiff] members; these members are directly hurt by
*** the sharp curtailment of their opportunities for funding. *** While it is not certain
that [the plaintiff] members would be funded due to the extra recovery from their claim
here, it is probable that the prospect of funding, itself substantial relief, would be
enhanced.” (Emphases added.) Id.
¶ 43 The probability that judicial relief would result in an economic benefit was likewise
sufficient to support standing in American Iron & Steel Institute v. Occupational Safety & Health
Administration, 182 F.3d 1261 (11th Cir. 1999). There, the American College of Occupational
and Environmental Medicine (hereinafter, Doctors) challenged a regulation promulgated by the
defendant, the Occupational Safety and Health Administration (OSHA), that enabled non-
physician health-care providers to perform federally mandated medical evaluation services that,
prior to the enactment of the regulation, could only be performed by physicians. Id. at 1266-67.
The court held that the Doctors had standing, reasoning that the Doctors suffered an economic
injury due to the “loss of patients and income[ ] inflicted by the lack of a requirement that
medical evaluations be performed only by physicians” and reasoned that “this injury is
redressable through judicial review” of the regulation. Id. at 1274 n.10.
¶ 44 Finally, plaintiffs cite United States Women’s Chamber of Commerce v. United States
Small Business Administration, No. 1:04-CV-01889, 2005 WL 3244182 (D.D.C. Nov. 30, 2005).
At issue there was a federal law that established a preferential procurement program for women-
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owned small businesses (WOSBs). Id. at * 1. But first, the Small Business Administration (SBA)
was required to conduct a study to identify industries in which WOSBs were underrepresented
and then, armed with that information, to propose procedures to implement the program. Id. at
* 2.
¶ 45 But for four years, the SBA had failed to conduct that study or propose implementation
procedures, thus stalling the program’s launch. The associational plaintiff, representing WOSBs,
sued to compel the SBA to implement the study and issue proposed procedures. The government
claimed the plaintiff lacked associational standing. First, said the government, the plaintiff
members’ injuries could not be fairly traced to the SBA’s conduct, because plaintiff could not
identify a single member in its association that failed to obtain a government contract because of
the lack of the WOSB procurement program. Id. at * 8.
¶ 46 The district rejected that argument. To satisfy the traceability prong, the court wrote, the
plaintiff need only show that “ ‘it reasonably could be inferred that’ had the defendants
conducted the study and adopted the procedures called for by the [federal law] ‘there is a
substantial probability’ that one of its members would have benefitted.” Id. (quoting Warth, 422
U.S. at 504).
¶ 47 The government also claimed the plaintiff members could not show that judicial redress
would benefit them, that none of the plaintiff members could show they belonged to an industry
eligible for the WOSB preference—because the SBA hadn’t yet identified which industries were
program-eligible. Id. The district rejected this “circular reasoning” and agreed with the plaintiff
that the government’s argument “ ‘imposes a “catch-22”: illegally refusing to implement the
mandates of the Act, while claiming that its refusal to implement the Act insulates its actions
from review.’ ” Id.
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¶ 48 We are persuaded by these federal decisions, cognizant that the very doctrine of
associational standing comes from the (obviously federal) United States Supreme Court decision
in Hunt, 432 U.S. 333. See International Union, 215 Ill. 2d at 51-52. Indeed, “to the extent that
the State law of standing varies from Federal law, it tends to vary in the direction of greater
liberality; State courts are generally more willing than Federal courts to recognize standing on
the part of any plaintiff who shows that he is in fact aggrieved by an administrative decision.”
Greer, 122 Ill. 2d at 491; see Alliance for the Great Lakes, 2020 IL App (1st) 182587, ¶ 32 (“our
supreme court has recognized that Illinois standing law is more liberal than federal law”).
¶ 49 In any event, we agree with these decisions that, when association members can
demonstrate an opportunity for financial benefits or contracts, the opportunity for which was
denied due to the government’s improper conduct, and the opportunity for which would be
restored if they prevail in this lawsuit, those members have standing.
¶ 50 Here, then, the member plaintiffs’ injuries are fairly traceable to the County’s conduct in
that they were denied the chance to bid on construction projects that inevitably would have
come, and would continue to come in the future, if the County followed its (alleged)
constitutional mandate and kept transportation dollars in a pot dedicated only for transportation.
Likewise, this injury is capable of redress through judicial relief; if plaintiffs prevail in this
lawsuit, the County will be required to claw back transportation tax dollars improperly diverted
and will be prevented from diverting them going forward. That means a large pot of tax revenue
that can only be spent for one purpose—transportation. It is more than substantially probable—it
is a near certainty that the County (or for that matter, any government unit), given that money
with only one purpose for it, would spend it for that purpose, all to the benefit of the members of
the plaintiff associations.
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¶ 51 Under these circumstances, it would defy logic and fundamental fairness to deny
plaintiffs standing simply because they cannot demonstrate with certainty that they would have
received in the past, or will receive in the future, a particular contract—particularly when the
reason they cannot demonstrate it is the very (alleged) misconduct of the government at issue in
the lawsuit. The opportunity to seek that benefit is more than enough to show that these plaintiffs
are litigants with skin in the game, with “ ‘such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions.’ ”
(Internal quotation marks omitted.) Kluk v. Lang, 125 Ill. 2d 306, 318 (1988) (quoting Flast v.
Cohen, 392 U.S. 83, 99 (1968)).
¶ 52 We are not moved by the County’s citation to I.C.S. Illinois, Inc. v. Waste Management
of Illinois, Inc., 403 Ill. App. 3d 211, 231 (2010), on which the circuit court relied to deny
standing to plaintiffs here; that case was decided under markedly different circumstances. That
lawsuit did not involve a suit for declaratory or injunctive relief against the government, seeking
to correct alleged government misconduct that denies financial opportunities to scores of private
companies. I.C.S. involved a class action brought by private firms against a private contractor,
sounding in tort and seeking lost profits for the failure to pick one of the plaintiffs for a sub-
contracting job. Those facts, alone, puts I.C.S. miles away from this case.
¶ 53 The two named plaintiffs in that purported class action were firms certified by the City of
Chicago as a minority business enterprise (MBE) or women-owned business enterprises (WBE)
who were thus eligible for procurement preferences with the city. Id. at 215. The defendant
contractor, Waste Management, procured a contract with the city and, instead of hiring a truly
certified MBE or WBE firm for a subcontractor, hired three firms who fraudulently claimed to be
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MBE/WBE contractors. Id. The plaintiffs did not and could not allege that the subcontracts were
let for competitive public bidding; that they would have secured those contracts, had they been
so bid; or that they were anything more than private contractors upset that a private firm gave the
contract to someone else, while violating city ordinances governing MBE/WBE preferences.
¶ 54 We affirmed the dismissal of the complaint for lack of standing. We held as follows: “a
subcontractor has no standing to challenge the award of a contract to a competitor after a bidding
process has been completed unless it can show that it would have won the contract but for the
defendant’s fraud. In the absence of such an allegation, a subcontractor does not suffer an injury
to a legally cognizable interest that is distinct and palpable.” Id. at 231.
¶ 55 I.C.S. thus addresses an entirely different situation, concerning a private companies’ suit
against another private company for monetary damages over a single lost job. The court analyzed
numerous “disappointed bidder” cases in reaching its conclusion (see id. at 221-31), but ours is
not a case involving a disappointed bidder seeking a single contract or damages for lost profits.
Ours is an action seeking to declare government conduct unconstitutional and to enjoin that
conduct in the future. The concept of “lost opportunities to bid” is relevant to standing in a
materially different way here than it is in a tort action over a single construction job.
¶ 56 We thus hold that plaintiffs have established associational standing. As such, we need not
consider the alternative claim of taxpayer standing.
¶ 57 B
¶ 58 The circuit court also reasoned that there were justiciability problems with this lawsuit,
that deciding this case would embroil the judiciary in policy choices over spending decisions and
require judges to decide things better left to legislators. We see no such problem.
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¶ 59 We are not being asked to construe constitutional language so ambiguous and ill-suited to
judicial determination as what it means for the State to provide for “ ‘an efficient system of high
quality public educational institutions and services.’ ” (Emphasis omitted.) Committee for
Educational Rights v. Edgar, 174 Ill. 2d 1, 10 (1996) (quoting Ill. Const. 1970, art. X, § 1). That
was particularly inappropriate given that, as our supreme court noted, a review of the
constitutional convention debates revealed that “the framers of the 1970 Constitution did not
intend to formulate any specific definition of ‘high quality,’ nor did they anticipate that the
concept would be defined by the courts.” Id. at 27. The language of the Amendment before us is
complex, as we will see, but far from incapable of judicial determination.
¶ 60 In discussing its justiciability concerns, the circuit court also cited Glisson, which
involved constitutional language providing that “ ‘[e]ach person has the right to a healthful
environment.’ ” Glisson, 188 Ill. 2d at 224 (quoting Ill. Const. 1970, art. XI, § 2). The words in
the Amendment before us are not so vague, aspirational, and subject to policy-driven debate as
the definition of a “healthful environment.” And more to the point, the citation is inapt, in any
event. It is true that the supreme court affirmed the dismissal of the complaint in Glisson, but not
because it was non-justiciable; the court dismissed the complaint for lack of standing because the
plaintiff was trying to enforce the right to a “healthful environment” not on his own behalf, but
on behalf of two species of fish. Id. at 231.
¶ 61 As will be shown, interpreting the Amendment will be no simple chore. But courts
interpret difficult language all the time. In the end, this lawsuit makes one simple claim—the
Amendment requires the County to sequester all revenues generated from transportation-related
taxes and to spend that money only for transportation purposes. We must determine whether the
Amendment does or does not do that very thing. It requires no policy judgment, no fiscal
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decisions, no embroilment of the judiciary into the everyday affairs of the legislature or a unit of
local government. We must merely decide what the law is and enter judgment accordingly.
¶ 62 As we hold that plaintiffs have standing to challenge the County’s actions, and we see no
barriers to justiciability, we turn now to the merits.
¶ 63 II
¶ 64 The trial court dismissed the complaint for failing to state a claim under section 2-615 of
the Code of Civil Procedure. See 735 ILCS 5/2-615 (West 2018). We accept as true all well-
pleaded facts and draw all reasonable inferences in favor of the plaintiff. Doe v. Coe, 2019 IL
123521, ¶ 20. Our review is de novo. Id.
¶ 65 Our analysis requires a review of the Amendment. We apply the same principles to the
construction of a constitutional provision as we would a statute. Kanerva v. Weems, 2014 IL
115811, ¶ 36. Our goal is to determine “the common understanding of the citizens who adopted”
the Amendment. Id. We do so, first and foremost, by examining the Amendment’s language,
“the most certain route to determining the framers’ intent.” Hooker v. Illinois State Board of
Elections, 2016 IL 121077, ¶ 47. If the language is clear and unambiguous, our inquiry ends, and
we give the Amendment its intended effect without resort to extrinsic information. Id. ¶ 35.
¶ 66 The Amendment consists of six subsections. The first two subsections command the bulk
of the parties’ arguments and our analysis, so we start there:
“(a) No moneys, including bond proceeds, derived from taxes, fees, excises, or
license taxes relating to registration, title, or operation or use of vehicles, or related to the
use of highways, roads, streets, bridges, mass transit, intercity passenger rail, ports,
airports, or to fuels used for propelling vehicles, or derived from taxes, fees, excises, or
license taxes relating to any other transportation infrastructure or transportation
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operation, shall be expended for purposes other than as provided in subsections (b) and
(c).
(b) Transportation funds may be expended for the following: the costs of
administering laws related to vehicles and transportation, including statutory refunds and
adjustments provided in those laws; payment of highway obligations; costs for
construction, reconstruction, maintenance, repair, and betterment of highways, roads,
streets, bridges, mass transit, intercity passenger rail, ports, airports, or other forms of
transportation; and other statutory highway purposes. Transportation funds may also be
expended for the State or local share of highway funds to match federal aid highway
funds, and expenses of grade separation of highways and railroad crossings, including
protection of at-grade highways and railroad crossings, and, with respect to local
governments, other transportation purposes as authorized by law.” (Emphasis added.) Ill.
Const. 1970, art. IX, § 11(a), (b).
¶ 67 Subsection (c) provides a further description of the first category of funds described in
subsection (b), “the costs of administering laws related to vehicles and transportation.” Ill. Const.
1970, art. IX, § 11(c).
¶ 68 Subsection (d) prohibits the diversion of transportation funds “to any purpose other than
those described in subsections (b) and (c).” Ill. Const. 1970, art. IX, § 11(d). Subsection (e)
envisions future modes of transportation currently unknown and provides that “[i]f the General
Assembly appropriates funds for a mode of transportation not described in this Section, the
General Assembly must provide for a dedicated source of funding.” Ill. Const. 1970, art. IX,
§ 11(e). Subsection (f) exempts federal funds from the Amendment entirely. Ill. Const. 1970, art.
IX, § 11(f).
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¶ 69 The County argues that the Amendment “is only applicable to situations involving
governments’ use of transportation-related monies as specified by an applicable statute and is
thus inapplicable to the County under the circumstances of the instant case.” (Emphasis added.)
That is to say, because the Amendment only sequesters revenues whose expenditures are
governed by a statute, it does not sequester the revenues from the Cook County Transportation
Taxes at issue here, whose expenditures are authorized by home-rule power, not a state law.
¶ 70 Plaintiffs’ view is that the Amendment applies to the spending of any transportation-tax-
related revenues whatsoever within the State of Illinois, no matter the authority under which that
money is spent—statute or local ordinance.
¶ 71 Before we go any further, it would be prudent to outline the various ways that a unit of
local government may receive and spend tax revenues.
¶ 72 A
¶ 73 Federal funds aside, a home-rule unit may receive revenues in one of three ways:
(1) from State-imposed taxes; (2) from taxes that the General Assembly authorizes the unit of
local government to impose itself; or (3) in the specific case of home-rule units, from taxes the
home-rule unit generates under its independent constitutional authority to tax. See Ill. Const.
1970, art. VII, § 6(a) (home-rule units have power to tax).
¶ 74 As to the first category, when the State imposes a tax and distributes some of the
revenues to units of local government, a statute will typically specify how local governments
must spend that money. For example, the State imposes a motor fuel tax and distributes some of
that revenue to counties, municipalities, and road districts. See 35 ILCS 505/2, 5, 8 (West 2018).
A statute then dictates the purposes for which the relevant unit of local government may spend
that revenue. Counties, for example, must spend that motor fuel tax revenue for such purposes as
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construction and maintenance of county and State highways, subdivision roads, county garages,
grade separations and approaches, and bicycle markings and paths; paying principal and interest
on road bonds; and allotting funds for retiring certain construction-related debt, bonds for
superhighways, local mass-transit districts, and the like. See generally 605 ILCS 5/5-701 to 5-
701.16 (West 2018).
¶ 75 As to the second category, the General Assembly may grant a unit of local government
the power to tax an item or transaction that the unit of local government would not otherwise
have the power to tax. For non-home rule units, that means every tax, as non-home-rule units
lack any constitutional authority to tax and only have that taxing power granted them by statute.
See Ill. Const. 1970, art. VII, § 7 (“[c]ounties and municipalities which are not home rule units
shall have only powers granted to them by law,” with exceptions not relevant here). And even
home-rule units have limits on their constitutional taxing authority; for example, they may not
tax income or occupations unless the General Assembly provides them that power by statute. See
Ill. Const. 1970, art. VII, § 6(e). (Or, of course, the home-rule unit may have the independent
authority to tax, but the General Assembly preempts that power and imposes its statutory will.
See Ill. Const. 1970, art. VII, § 6(g).)
¶ 76 When the General Assembly provides a unit of local government statutory authority to
impose a tax, the legislature may, if it chooses, likewise dictate the purposes for which that tax
revenue is spent. For example, non-home-rule municipalities may impose a retailers’ occupation
tax, but they must spend that tax revenue on “public infrastructure” or “property tax relief” (with
one caveat allowing some of them to spend it for general “municipal operations” until the year
2030). See Pub. Act 101-47, § 5 (eff. Jan. 1, 2020) (amending 65 ILCS 5/8-11-1.3). And because
the General Assembly always retains the constitutional authority to preempt home-rule powers,
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nothing would stop the General Assembly from enacting a statute that authorized a home-rule
unit to impose a tax and mandating how that tax revenue could be spent.
¶ 77 But that’s up to the General Assembly, which could also choose to authorize a home-rule
tax but remain silent on how the home-rule unit spends that tax revenue. For example, the
General Assembly allows home-rule municipalities to impose a retailers’ occupation tax, but that
statutory grant of authority contains no mandate on how the home-rule unit may spend that
money. See 65 ILCS 5/8-11-1 (West 2018). When a home-rule unit is not mandated by statute to
spend tax revenue a certain way, it may spend the revenue as it pleases, under its general home-
rule power. See Allen v. County of Cook, 65 Ill. 2d 281, 288 (1976) (“the manner in which the
defendant county appropriates funds *** is a matter ‘pertaining to its government and affairs’ ”
within county’s home rule powers (quoting Ill. Const. 1970, art. VII, § 6(a))).
¶ 78 The third category of revenues, as mentioned, are revenues specific to a home-rule unit—
revenue from taxes a home-rule unit imposes by virtue of its independent constitutional authority
to tax. Ill. Const. 1970, art. VII, § 6(a). That is, the home-rule unit does not look to a statute for
taxing authorization. Typically, in this situation, the home-rule unit does not look to a statute for
spending authorization, either; it spends that tax revenue under its general home-rule power to do
so. See Allen, 65 Ill. 2d at 288. (Theoretically, of course, a statute could mandate a home-rule
unit’s spending of its home-rule-generated tax revenue without tinkering with its taxing
authority. Plaintiffs claim that happened recently; more on that later.)
¶ 79 To summarize, and putting aside federal funds, as they are not relevant here, a home-rule
unit like Cook County may receive revenue from one of three sources: (1) revenues from taxes
imposed by the State, which are distributed to units of local government, the spending of which
is typically dictated by statute; (2) revenues from taxes the home-rule unit, itself, imposes, but by
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virtue of statutory authorization, that may or may not contain a statutory mandate on how that tax
revenue may be spent; and (3) revenues from taxes imposed by the home-rule unit by its own
constitutional taxing authority, not a statute, which typically does not involve any statutory
mandate on how that tax revenue may be spent, either.
¶ 80 With that in mind, we turn to the substance of the parties’ arguments about the meaning
of the Amendment.
¶ 81 B
¶ 82 Plaintiffs’ position, again, is that Amendment applies to revenue generated from any
transportation-related tax imposed by any government within Illinois, be it the State or a unit of
local government like Cook County, regardless of whether a statute or a local home-rule
ordinance governs the spending of that tax revenue. In other words, plaintiffs argue that the
Amendment covers all three of the revenue sources that we have mentioned immediately above,
insofar as those revenues come from transportation-related taxes.
¶ 83 The County, on the other hand, argues that the Amendment applies only to the spending
of transportation-related tax revenue that is controlled by a statute—which, they say, excludes
the six Cook County Transportation Taxes at issue here.
¶ 84 A reading of subsection (a) of the Amendment, alone, would support plaintiffs’
argument. Again, subsection (a) provides:
“(a) No moneys, including bond proceeds, derived from taxes, fees, excises, or
license taxes relating to registration, title, or operation or use of vehicles, or related to the
use of highways, roads, streets, bridges, mass transit, intercity passenger rail, ports,
airports, or to fuels used for propelling vehicles, or derived from taxes, fees, excises, or
license taxes relating to any other transportation infrastructure or transportation
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operation, shall be expended for purposes other than as provided in subsections (b) and
(c).” Ill. Const. 1970, art. IX, § 11(a).
¶ 85 That language is broad. It contains no limitation on the types of “taxes, fees, excises, or
license taxes” (id.) to which the Amendment applies. It contains no language or term of art that
we would associate exclusively with acts of the General Assembly. It makes no attempt to
differentiate between taxes and fees generated by operation of a statute versus those generated by
operation of a municipal ordinance.
¶ 86 But of course, we don’t isolate passages in our interpretation; we read the Amendment as
a whole. People ex rel. Chicago Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 527
(1990). And subsection (b) contains language suggesting that our task is not so simple. Again,
that subsection, concerning the purposes for which transportation-related taxes may be spent,
reads as follows:
“(b) Transportation funds may be expended for the following: the costs of
administering laws related to vehicles and transportation, including statutory refunds and
adjustments provided in those laws; payment of highway obligations; costs for
construction, reconstruction, maintenance, repair, and betterment of highways, roads,
streets, bridges, mass transit, intercity passenger rail, ports, airports, or other forms of
transportation; and other statutory highway purposes. Transportation funds may also be
expended for the State or local share of highway funds to match federal aid highway
funds, and expenses of grade separation of highways and railroad crossings, including
protection of at-grade highways and railroad crossings, and, with respect to local
governments, other transportation purposes as authorized by law.” (Emphases added.) Ill.
Const. 1970, art. IX, § 11(b).
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¶ 87 The County points to language in subsection (b), italicized above, that includes the word
“law” or some derivation of the word “statute.” As the County correctly notes, those terms refer
to acts of the General Assembly.
¶ 88 When the General Assembly passes a bill, that bill becomes a “law.” Ill. Const. 1970, art.
IV, § 8(b). The phrases “by law” or “authorized by law” refer exclusively to enactments of the
General Assembly. See Illinois State Toll Highway Authority v. American National Bank & Trust
Co. of Chicago, 162 Ill. 2d 181, 200 (1994) (“as provided by law” means as prescribed or
provided by the General Assembly, as “specifically authorized by statute”); Quinn v.
Donnewald, 107 Ill. 2d 179, 186-87 (1985) (phrase “by law” in 1970 Constitution refers to
General Assembly’s “ ‘entire law-making process’ ” (quoting 3 Record of Proceedings, Sixth
Illinois Constitutional Convention 2180 (statements of Delegate Whalen))). Indeed, within the
very same revenue article in which the Amendment appears as section IX, section 1, provides
that “[t]he General Assembly has the exclusive power to raise revenue by law except as limited
or otherwise provided in this Constitution.” (Emphasis added.) Ill. Const. 1970, art. IX, § 1.
¶ 89 Municipalities and counties, in contrast, do not pass laws—they adopt ordinances. As just
one example found in the Constitution, though otherwise not relevant here, the section governing
home-rule units within the local government article contains this provision: “If a home rule
county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall
prevail within its jurisdiction.” Ill. Const. 1970, art. VII, § 6(c). And when differentiating
between acts of the General Assembly and acts of units of local government, the Constitution
makes the distinction clear: “County officers shall have those duties, powers and functions
provided by law and those provided by county ordinance.” Ill. Const. 1970, art. VII, § 4(d). That
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sentence would be hopelessly redundant if “by law” and “by county ordinance” were one and the
same.
¶ 90 And nobody could seriously claim that the term “statute” refers to an act of a unit of local
government; it means a law passed by the General Assembly. Certainly in today’s parlance,
meaning the phraseology used circa 2016 when the Amendment was adopted, anyone would
understand “statute” as applying exclusively to state legislative enactments. The General
Assembly refers to its codified public acts as “statutes,” and the compilation of them as
“[c]ompiled [s]tatutes.” 25 ILCS 135/5.04 (West 2018).
¶ 91 The lone reference to a “statute” in the Constitution, before the Amendment in 2016,
makes this clear. It appears in article V, the executive article, which lays out the procedure when
the governor reorganizes executive agencies in such a way as to contravene a “statute.” Ill.
Const. 1970, art. V, § 11. That can only mean a law passed by the General Assembly, the body
that creates and circumscribes the power of executive agencies by law. See Granite City Division
of National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 171 (1993) (executive
agencies are creatures of statute that confines that agency’s authority). Our supreme court
interpreted its jurisdiction under the 1870 Constitution to hear cases involving the construction of
a “statute” and held that it had no jurisdiction to hear an appeal over the construction of a
municipal ordinance, as “an ordinance is not a statute.” Wood v. City of Chicago, 205 Ill. 70, 72
(1903). We see no indication of a different meaning under the 1970 Constitution.
¶ 92 Simply put, the terms “law” and “statute,” within the 1970 Constitution, are synonymous.
They both refer exclusively to enactments of the General Assembly.
¶ 93 With that in mind, we examine the first of the two sentences contained in subsection (b):
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“Transportation funds may be expended for the following: the costs of administering laws
related to vehicles and transportation, including statutory refunds and adjustments
provided in those laws; payment of highway obligations; costs for construction,
reconstruction, maintenance, repair, and betterment of highways, roads, streets, bridges,
mass transit, intercity passenger rail, ports, airports, or other forms of transportation; and
other statutory highway purposes.” (Emphases added.) Ill. Const. 1970, art. IX, § 11(b).
¶ 94 A lot to unpack there. But the upshot is that the County says the various references to
“laws” and the term “statutory” clearly indicate an intent to only sequester revenues spent
pursuant to statute.
¶ 95 Among several examples is the final catch-all phrase “and other statutory highway
purposes.” Id. It is tempting to invoke the familiar rule of construction here that, when a list is
given, and an inclusive wrap-up modifier with the term “other” is used, that modifier describes
the components of the list that preceded it. See People v. Davis, 199 Ill. 2d 130, 138 (2002)
(“when a statutory clause specifically describes several classes of persons or things and then
includes ‘other persons or things,’ the ‘other’ is interpreted as meaning ‘other such like’ ”
(quoting Farley v. Marion Power Shovel Co., 60 Ill. 2d 432, 436 (1975))).
¶ 96 If that were the intent of the framers, it would follow that this final clause was intended to
modify everything on the list that preceded it—that is, everything on that list was a “statutory
highway purpose.” And that would obviously support the County’s read of the Amendment.
¶ 97 But no canon of construction is absolute; we will not invoke that or any other canon if it
yields an illogical result. People v. Hanna, 207 Ill. 2d 486, 498 (2003). And while everything on
the list preceding that final clause could theoretically be considered a “statutory” purpose, not
everything would fall under the definition of a “highway” purpose. Plaintiffs point to language in
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the clause preceding the final clause, which includes purposes such as constructing and
maintaining “mass transit, intercity passenger rail, ports, [and] airports”—none of which, say
plaintiffs, could possibly qualify as “highways.”
¶ 98 In determining what a “statutory highway” purpose means, it seems logical enough to
consider how the legislature has historically defined it—in a “statute” that governs “highways.”
The Illinois Highway Code “defines “highway” as “any public way for vehicular travel which
has been laid out in pursuance of any law of this State, or of the Territory of Illinois,” including
“rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other
structures and appurtenances necessary or convenient for vehicular traffic.” 605 ILCS 5/2-202
(West 2018). And “[a] highway in a rural area may be called a ‘road,’ while a highway in a
municipal area may be called a ‘street.’ ” Id.
¶ 99 That definition of “highway” is broad, but not so broad to encompass a port or airport. So
plaintiffs are correct. That canon of construction does not apply—not everything on that list in
the first sentence is a “statutory highway” purpose.
¶ 100 Indeed, plaintiffs could turn the tables and use that reference to “statutory highway
purposes” in their favor. That is, subsection (b)’s first sentence contains a list of four purposes,
two of which mention “laws” or “statutory”—indicating enactments of the General Assembly
exclusively—but two of which do not. The drafters thus obviously knew how to include those
terms when they wished, yet they chose not to do so when describing the second and third
purposes: “payment of highway obligations” and “costs for construction, reconstruction,
maintenance, repair, and betterment of highways, roads, streets, bridges, mass transit, intercity
passenger rail, ports, airports, or other forms of transportation.” Ill. Const. 1970, art. IX, § 11(b).
The absence of those terms in those clauses, then, might suggest that the drafters specifically
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intended not to limit the purposes to “statutory” ones and, instead, intended to include purposes
contained in local ordinances, too. See People v. Olsson, 2011 IL App (2d) 091351, ¶ 9 (“It is a
generally accepted canon of construction that the express inclusion of a provision in one part of a
statute and its omission in a parallel section is an intentional exclusion from the latter.”).
¶ 101 But on the other hand, if plaintiffs are correct and the Amendment restricts revenue
spending governed by home-rule ordinance as well as statute, why mention “laws” and “statutes”
without mentioning “ordinances,” too? Or for that matter, the framers could have mentioned
none of them, thereby including all of them. After all, that’s what they did in subsection (a).
They made no mention of statutes or ordinances and, by their absence, suggested a scope broad
enough to encompass both. Yet in subsection (b)’s first sentence, they specified enactments of
the General Assembly without ever once mentioning ordinances or enactments of home-rule
units.
¶ 102 And on the subject of those few items that plaintiffs identify in subsection (b) that do not
qualify as “highway” purposes—construction and maintenance of “mass transit, intercity
passenger rail, ports, [and] airports” (Ill. Const. 1970, art. IX, § 11(b))—we find every reason to
believe that, while they may not be highway purposes, the drafters of the Amendment considered
them statutory purposes. We reach that conclusion by looking at subsection (c) of the
Amendment.
¶ 103 That subsection defines one of the purposes expressed in subsection (b), the first one:
“the costs of administering laws related to vehicles and transportation, including statutory
refunds and adjustments provided in those laws.” Id. Subsection (c)’s description of that phrase
includes the following:
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“The costs of administering laws related to vehicles and transportation shall be limited to
direct program expenses related to the following: the enforcement of traffic, railroad, and
motor carrier laws; the safety of highways, roads, streets, bridges, mass transit, intercity
passenger rail, ports, or airports; and the construction, reconstruction, improvement,
repair, maintenance, operation, and administration of highways, under any related
provisions of law or any purpose related or incident to, including grade separation of
highways and railroad crossings.” (Emphases added.) Ill. Const. 1970, art. IX, § 11(c).
¶ 104 This language includes “the safety of *** mass transit, intercity passenger rail, ports, or
airports” (id.) within the definition of “laws,” meaning statutes.
¶ 105 That takes us to the other sentence in subsection (b), which provides further support for
the County’s claim that only the spending of revenues governed by statute are sequestered by the
Amendment: “Transportation funds may also be expended for the State or local share of highway
funds to match federal aid highway funds, and expenses of grade separation of highways and
railroad crossings, including protection of at-grade highways and railroad crossings, and, with
respect to local governments, other transportation purposes as authorized by law.” (Emphasis
added.) Ill. Const. 1970, art. IX, § 11(b).
¶ 106 “Authorized by law,” as we have said, means authorized by statute. The reference there
to “local governments” includes both home-rule and non-home-rule units, of course. The fact
that this language treats home-rule and non-home-rule units the same, both requiring
“authoriz[ation] by law,” is telling, because home-rule units do not always require authorization
by law when they spend tax revenue. As noted at length above, sometimes, a statute authorizes a
home-rule unit to impose a tax but does not mandate how that that home-rule unit will spend the
tax revenue, as we noted above with an example. See, e.g., 65 ILCS 5/8-11-1 (West 2018)
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(allowing home-rule municipalities to impose retailers’ occupation tax but not specifying how
tax revenues must be spent). And of course, other times, a home-rule unit will impose a tax based
on its own constitutional taxing power and will spend that tax revenue under its general home-
rule powers, with no statute entering the picture at all. If plaintiffs are correct that revenues spent
pursuant to traditional home-rule power are included within this scope, what “authorization by
law” should that home-rule unit consult? If no statute governs its spending, what statute could
the home-rule unit possibly consult for authority?
¶ 107 This language only makes sense one way: In allowing for “local governments” to spend
transportation tax revenues for “other transportation purposes as authorized by law,” the
Amendment can only be referring to those situations where home-rule and non-home-rule units
have the same spending powers—which is when, and only when, they are following the spending
dictates of a statute. It is nearly impossible to reconcile plaintiffs’ position, that all revenue
spending is restricted by this Amendment, even that which is not governed by statute, with this
language in the second sentence of subsection (b).
¶ 108 That subsection aside, the County’s interpretation also finds support in the Amendment’s
subsection (e), providing that “[i]f the General Assembly appropriates funds for a mode of
transportation not described in this Section, the General Assembly must provide for a dedicated
source of funding.” Ill. Const. 1970, art. IX, § 11(e). That provision is obviously intended for
future, currently unknown modes of transportation and provides that if the state legislature
decides that some new mode of transportation is worthy of state funding, it will have to dedicate
a tax or other source of funding to it—which likely will have the effect, under subsection (a), of
permanently locking in the protections of the Amendment over those revenues, too.
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¶ 109 But why only mention the General Assembly and not home-rule units as well? If the
Amendment is as broad as plaintiffs say, and the spending of revenue not governed by statute is
also restricted, why give home-rule units a pass in subsection (e)? A home-rule unit is just as
capable of “appropriat[ing] funds” for some new mode of transportation, and equally able to
“provide for a dedicated source of funding”—that is, impose a tax and dedicate a revenue
stream—as the General Assembly is. Why lock down the General Assembly but give home-rule
units a pass? If plaintiffs are correct, and the Amendment intended to restrict a home-rule unit’s
spending of transportation-related tax revenue not governed by statute but only via home-rule
ordinance, the drafters seriously whiffed by omitting home-rule units from the language of
subsection (e). The exclusion of any reference to home-rule units in subsection (e) cannot be
ignored.
¶ 110 We reach a final point raised by both parties: the absence of any mention of home-rule
units and their powers anywhere in the Amendment. As we will see, it cuts both ways.
¶ 111 The County says if the drafters had intended to preempt home-rule power to spend
revenue, the Amendment would have been required to specifically state that home-rule powers
were preempted—much like statutes are required to specifically preempt home-rule power in
various contexts. See Ill. Const. 1970, art. VII, § 6(i); 5 ILCS 70/7 (West 2018). Something
along these lines: “The provisions of this Section are a denial and limitation of home-rule powers
and functions.” That is the language the General Assembly uses when it preempts home-rule
authority. See, e.g., Pub. Act 101-10, § 15-45 (eff. June 5, 2019) (amending 65 ILCS 5/8-11-1).
¶ 112 Or, says the County, if the framers intended the broad scope that plaintiffs advocate, they
should have amended section 6 of the local government article, where home-rule powers are
found. See Ill. Const. 1970, art. VII, § 6. The broad language there provides: “Except as limited
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by this Section, a home rule unit may exercise any power and perform any function pertaining to
its government and affairs ***.” (Emphasis added.) Ill. Const. 1970, art. VII, § 6(a). Right there,
next to the italicized language, or at least somewhere within that “section,” a reference could
have been made to the Amendment being an additional restriction on home-rule power, along
with others contained in that “section.”
¶ 113 Plaintiffs respond that constitutional provisions may apply to and restrict home-rule
power without using any such language—or without even mentioning home-rule powers.
Nobody would dispute, for example, that provisions protecting free speech, the free exercise of
religion, or the right to a non-diminished public pension are applicable to home-rule units, even
though none of those provisions specifically say they are.
¶ 114 In fact, plaintiffs argue, the absence of any mention of home-rule powers cuts the other
way. The drafters of the Amendment knew how to create exemptions—they did that very thing
by exempting federal funds from its scope in subsection (f). See Ill. Const. 1970, art. IX, § 11(f).
Thus, say plaintiffs, the absence of any mention of home-rule units suggests that no exemption
for them was intended.
¶ 115 We would agree with plaintiffs to some extent. We are cited no precedent holding that the
applicability of a constitutional provision to a home-rule unit is dependent on language within
that provision specifically applying itself to a home-rule unit. And we can think of no reason
why some bright-line rule of that nature would make sense.
¶ 116 The rule that statutes must expressly indicate a preemption of home-rule powers, while
certainly contained in the Statute on Statutes (see 5 ILCS 70/7 (West 2018)), in reality stems not
from that source but from the Constitution itself. See Ill. Const. 1970, art. VII, § 6(i) (home-rule
units may exercise powers concurrently with State “to the extent that the General Assembly by
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law does not specifically limit the concurrent exercise or specifically declare the State’s exercise
to be exclusive” (emphases added)); Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013
IL 110505, ¶ 36.
¶ 117 But the Constitution contains no provision requiring that another constitutional provision,
even an amendment, contain express language preempting home-rule power to be effective. The
express-preemption rule for statutes does not apply to constitutional provisions.
¶ 118 Still, while it is true that the drafters of the Amendment did not contain an express
exemption for the exercise of home-rule spending power, as it did for the expenditure of federal
funds in subsection (f), we do find it significant that the Amendment contains no express
inclusion of home-rule spending powers within its scope. We say that not as some bright-line
rule but based on the specific language of the Amendment, as we have already discussed. After
all, in subsections (b) and (c), the framers went to the trouble of specifically mentioning “laws”
and “statut[es]” but never ordinances, and then in subsection (e) mentioned future restrictions on
“the General Assembly” but not on home-rule units. Ill. Const. 1970, art. IX, § 11(b), (c), (e).
¶ 119 And when the Amendment did mention “local governments” (Ill. Const. 1970, art. IX,
§ 11(b)), a grand total of one time, it lumped all units of local government together, home-rule
and non-home-rule alike. Treating them without distinction, in the context of spending power,
makes sense only in situations where a statute governs the local governments’ spending of tax
revenue, rendering local governments of all kinds, home-rule or not, the same in their
subordination to state law.
¶ 120 If the framers intended the Amendment to be read as plaintiffs contend, one would think
that the framers might have noticed their frequent inclusion of words like “laws” and “statutory,”
their wholesale exclusion of the words “ordinance” or “home rule,” their restriction on the
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General Assembly but not home-rule units in subsection (e), and their failure to make any
distinction in their discussion of “local governments” between home-rule and non-home-rule
units—and make some attempt to clarify that home-rule spending powers were being restricted
by the Amendment. But they did not.
¶ 121 Where does that leave things? We think the County has the better of the argument. Yes,
subsection (a) speaks in the broadest terms about revenue sources, favoring plaintiffs’
interpretation. But that language is cabined by the language of subsections (b), (c), and (e),
which lead to the almost inescapable conclusion that the Amendment covers only those revenues
spent in accordance with state law, which would exclude transportation-related revenues spent
pursuant to home-rule power.
¶ 122 If the County is right, why the broad language in subsection (a)? We would hazard this
reason: The framers wrote subsection (a) so broadly because, in theory, any spending of tax
revenue might be governed by statute. As we explained at the outset, all spending of state-
imposed tax revenue is governed by statute, whether spent by the State or distributed to local
governments. All spending of tax revenue by non-home rule units is governed by statute. And
some spending of tax revenue by home-rule units is governed by statute—but all such home-rule
spending, in theory, could be. The General Assembly can always preempt a home-rule unit’s
spending powers.
¶ 123 Viewed in that light, it might have made sense to the framers to draft subsection (a)
broadly to account for all the transportation-related taxes imposed at any level of government,
understanding that the limitations in subsections (b), (c), and (e) would cabin that scope.
¶ 124 Having said all this, while we find plaintiff’s interpretation less convincing, it is not
altogether unreasonable. The breadth of subsection (a), alone, gives one pause. Plaintiffs’
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position on subsection (b) is not unreasonable, either. While we prefer the County’s take, it
remains fair to say that only some of the spending purposes listed in subsection (b) are modified
by the word “law” or “statutory,” leaving open the possibility that the framers omitted those
modifiers when describing other purposes because they intended a broader meaning than merely
“statutory” purposes. And as plaintiffs argue, if the intent of the framers were to altogether
exclude home-rule spending powers from the Amendment, a few words would have done the
trick.
¶ 125 In the end, the Amendment is far—light years—from a model of draftsmanship.
Language favoring either the County’s or the plaintiff’s interpretation would have been quite
easy to insert. In the face of two competing interpretations, both of which we find reasonable to
one degree or another, we deem the language ambiguous. See Nowak v. City of Country Club
Hills, 2011 IL 111838, ¶ 11.
¶ 126 C
¶ 127 In the face of an ambiguous constitutional provision, we consider the legislative debates
and the information provided to the voters of Illinois regarding the Amendment. See Hooker,
2016 IL 121077, ¶ 35 (when constitutional language is ambiguous, resort to extrinsic aids, such
as “the drafting history of the provision,” are appropriate (internal quotation marks omitted)). We
will also consider recent legislation passed by the General Assembly that both parties have cited.
We begin with the legislative debates.
¶ 128 1
¶ 129 First, some brief background. Generally speaking, the General Assembly has always had
the authority to move revenue receipts—money—from one state fund to another. That is true
even if a statute says that funds may not be transferred—because the General Assembly can
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always amend that statute and remove the transfer prohibition for that one time (if not
permanently). See A.B.A.T.E. of Illinois, Inc. v. Quinn, 2011 IL 110611, ¶ 25; Department of
Public Welfare v. Haas, 15 Ill. 2d 204, 215 (1958) (“The fact that the legislature may provide
that amounts, when collected, shall be placed in a certain fund does not ordinarily preclude a
later General Assembly from ordering it paid into another fund or from abolishing the fund
altogether.”). Statutes exist at the whim of the General Assembly to amend as it pleases.
¶ 130 The movement of money from one fund to another is often called a “sweep” of that
money. And a principal, if not the principal, problem that the supporters of the Amendment
sought to address was “sweeps” of transportation-related funds into other, non-transportation-
related funds. One example was the subject of a decision of our supreme court, A.B.A.T.E., 2011
IL 110611, ¶ 19, which concerned the General Assembly’s sweep of funds out of the Cycle
Riders Safety Training Fund and into the General Revenue Fund.
¶ 131 A more common example is a sweep of the Road Fund, which over the years the General
Assembly has frequently raided for other purposes. For example, in 2015, the year before the
Amendment was placed on the ballot, the General Assembly swept $250 million from the Road
Fund, along with $50 million from the State Construction Fund, $50 million from the Motor Fuel
Tax Fund, $40 million from the County and Mass Transit District Fund, $10 million from the
Grade Crossing Fund, and $9 million from the Public Infrastructure Construction Loan
Revolving Fund—all into the General Revenue Fund, a decidedly non-transportation-specific
fund. See Pub. Act 99-2, § 15 (eff. Mar. 26, 2015) (adding 30 ILCS 105/8.50).
¶ 132 In both the House and the Senate, supporters of the Amendment made prominent mention
of the problem of sweeps from transportation-dedicated state funds into the General Revenue
Fund or other non-transportation-specific funds. In his opening remarks on the House floor, the
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sponsor, Representative Phelps, complained that “Too many times we had funds that have been
swept.” 99th Ill. Gen. Assem., House Proceedings, April 22, 2016, at 18 (statements of
Representative Phelps). He then had this exchange with Representative Sandack:
“[REPRESENTATIVE] SANDACK: Representative, would this avoid any
sweeps in the future if this question is approved by voters?
[REPRESENTATIVE] PHELPS: That’s exactly right.
[REPRESENTATIVE] SANDACK: And it would keep segregated sacrosanct tax
dollars for improvements to the infrastructure…for infrastructure and infrastructure only?
[REPRESENTATIVE] PHELPS: Absolutely.” Id. (statements of Representatives
Sandack and Phelps).
¶ 133 In his introductory remarks in the Senate, the sponsor, Senator Haine, said this:
“[M]otor fuel taxes and motor vehicle registration fees are today deposited into the Road
Fund and the State Construction Fund to pay for construction projects and debt service on
bonds issued for previous construction projects. Under this constitutional amendment,
these revenue sources would be protected and can only be spent for transportation
purposes. As a result, this amendment is intended to overrule the Illinois Supreme Court
2011 case A.B.A.T.E. of Illinois versus Quinn, which upheld the State’s authority to
repurpose and spend monies raised through motor vehicle tax—registration fees on non-
transportation purposes.” 99th Ill. Gen. Assem., Senate Proceedings, May 5, 2016, at 58-
59 (statements of Senator Haine).
¶ 134 We would quibble with one thing the senator said: The Amendment did not “overrule”
the A.B.A.T.E. decision, which merely recognized the General Assembly’s constitutional power
to amend any statute and thus move money between funds at will. The Amendment simply
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imposed a constitutional limitation on the General Assembly’s power to do so in the specific
context of revenues generated by transportation-related taxes or fees. The General Assembly
may still amend statutes and may still move money between funds, but if the revenues were
initially generated by a State-imposed transportation-related tax or fee, that money must now be
spent for some transportation-related purpose—no matter where the money moves, and no matter
who spends it—the State or a unit of local government.
¶ 135 The legislative debates made this clear, if it were not already. For example, this exchange
on the floor of the Senate between the Amendment’s sponsor, Senator Haine, and Senator
McConnaughay (for brevity, we omit from the transcript the statements of the presiding officer
directing the conversation from one senator to another):
“SENATOR MCCONNAUGHAY: *** I read in—the language in the
constitutional amendment and I agree the language used is ambiguous. Do you view the
language as ambiguous?
***
SENATOR HAINE: Yes, somewhat, and that’s why we’re doing these questions
to—to clarify this.
***
SENATOR MCCONNAUGHAY: Senator, you mentioned the—the motor fuel
taxes in your introductory remarks and—and last answer. Am I correct that the
constitutional amendment also protects the current distribution of monies raised from the
State motor fuel tax that are shared with local governments as well as transferred to the
State Boating Act Fund, Grade Crossing Protection Fund, and Vehicle Inspection Fund?
***
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SENATOR HAINE: Yes, that is correct. The current distribution of monies from
the State motor fuel taxes are dedicated to transportation purposes. It is not the intention
of this amendment to alter the current distribution of motor fuel tax revenues, including
those distributions that are—that currently cover administrative costs.” (Emphasis
added.) Id. at 62-63 (statements of Senators McConnaughay and Haine). 1
¶ 136 Presumably both parties would agree that this colloquy supports, if nothing else, the
notion that the Amendment sequesters revenues from taxes imposed by the State itself, pursuant
to state law (as always), and distributed to units of local government—home-rule or otherwise.
¶ 137 And the legislative debates further support the notion that the Amendment is intended to
restrict a unit of local government’s spending of its own tax revenues, as long as that spending,
again, is controlled by statute:
“SENATOR MCCONNAUGHAY: Senator Haine, that leads me to my next
question. What about the Regional Transportation Authority’s sales tax that is imposed in
Cook and the collar counties and the Real Estate Transfer Tax in the City of Chicago that
are dedicated to Public Transportation Fund? Are those monies protected by this
constitutional amendment?
***
SENATOR HAINE: Yes, Senator McConnaughay. Those monies from the RTA
sales tax and that portion of the City of Chicago’s Real Estate Transfer Tax that the
1
A nearly identical exchange took place on the floor of the House with the House sponsor,
Representative Phelps. See 99th Gen. Assem., House Proceedings, April 22, 2016, at 20-21 (statements of
Representatives Phelps and Fortner).
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Chicago Transit Authority receives are protected by the constitutional amendment.” Id. at
63 (statements of Senators McConnaughay and Haine). 2
¶ 138 And the reason those Regional Transportation Authority (RTA) revenues are protected by
the Amendment is that the spending of that tax revenue is dictated by statute. The RTA, a
regional public transportation body, is a unit of local government created by the Regional
Transportation Authority Act. See 70 ILCS 3615/1.01, 1.04 (West 2018). That act gives the RTA
the authority to impose certain transportation-related taxes and provides that the revenue shall be
spent “to carry out any of the powers or purposes of the [RTA]” (id. § 4.03(a)), which are then
listed in various places throughout the act.
¶ 139 So far, so good. That confirms both parties’ (and our) interpretation that the Amendment,
if nothing else, “protects” or sequesters revenues from transportation-related taxes that are spent
pursuant to statute, either by the State itself or by a unit of local government following the
dictates of a statute.
¶ 140 The big question here, of course, is whether the Amendment went further and likewise
requires the sequestration of funds that a home-rule unit spends pursuant to its independent
constitutional home-rule spending power, not pursuant to statute. On that question, the sponsors
of the Amendment were emphatic—the Amendment was not intended to preempt home-rule
spending powers. The Senate sponsor, Senator Haine, included this in his opening remarks:
“This proposed constitutional amendment is intended to be on a par with Article VII,
Section 6 [the home-rule section] of the Constitution and current home-rule power. This
proposed constitutional amendment is not intended to eliminate, restrict, or apply to
2
Again, a nearly verbatim discussion of the RTA sales tax and Chicago’s real estate transfer tax
occurred on the House floor. See 99th Gen. Assem., House Proceedings, April 22, 2016, at 21 (statements
of Representatives Phelps and Fortner).
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current constitutional and statutory authority that home-rule units have relative to taxes,
spending, and other public safety functions.” 99th Ill. Gen. Assem., Senate Proceedings,
May 5, 2016, at 59 (statements of Senator Haine).
¶ 141 The County relies most heavily on a colloquy in the Senate between the sponsor and
Senator Raoul (representing a district within the state’s two largest home-rule units, the City of
Chicago and Cook County):
“SENATOR RAOUL: As mentioned, this—this language is very ambiguous to
me, so I just want to ask these questions. Senator Haine, Cook County imposes several
taxes that provide revenue for public safety operations, including, but not limited to, the
criminal court system, the Cook County Jail, Cook County Sheriff, the Cook County
State’s Attorney, the Office of the Chief Judge of Cook County. These taxes are imposed
by virtue of Cook County’s home-rule taxing authority under the Illinois Constitution.
Specifically, Cook County imposes the Wheel Tax, New Motor Vehicle Tax, Motor Fuel
Taxes, the Use Tax, the Non-Retailer Vehicle Transaction Tax, and the Non-Retailer Use
Tax. Again, revenues from these taxes are used to pay for Cook County’s public safety
operations, including workers’ compensation claims for affected public safety employees.
Am I correct that under this constitutional amendment, Cook County could continue to
spend the monies from—from these taxes on its public safety operations?
***
SENATOR HAINE: The answer is yes for four reasons. First, as I explained
earlier, this proposed constitutional amendment is intended to be on a par with Article VI
[sic] (VII), Section 6 of the Constitution and current home-rule power. The proposed
constitutional amendment is not intended to eliminate, restrict, or apply to current
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constitutional and statutory authority that home-rule units have—have relative to taxes,
spending, and public safety functions. Secondly, since the Cook County’s Use Tax and
Non-Retailer Use Tax are general taxes on all tangible personal property just like the
State sales tax, those taxes are not covered by this constitutional amendment, as I’ve
explained earlier. Thirdly, as I stated earlier, it is a valid transportation purpose to spend
monies under this amendment on the enforcement of traffic, railroad, and motor carrier
laws. As a result, Cook County can continue to spend monies from these public safety
operations at—as it is today.
***
SENATOR HAINE: Finally, I draw your attention to page 2, lines 13-14 of the
constitutional amendment. Here the amendment provides that transportation funds may
be expended ‘with respect to local governments, other transportation purposes as
authorized by law.’ The key phrase is ‘authorized by law.’
***
SENATOR HAINE: This phrase, ‘as authorized by law’, includes local
governments’ current use as authorized by current law—for instance, critical public
safety functions as police departments, jail operations, and courts. This provision is
intended to be construed broadly so as not to interfere in any way with local
governments’ current authority and practices. The language permits the General
Assembly to determine, with respect to local governments, what are other proper
transportation purposes by statute. It is also permitting home-rule units to determine what
are other proper transportation purposes as well by virtue of their home-rule taxing power
under Article VII, Section 6 of the Constitution. Given that Cook County and the City of
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Chicago as well as other home-rule units have the home-rule power to impose taxes that
you listed, this language provides a further basis allowing the home-rule units to spend
these monies on public safety.” Id. at 67-70 (statements of Senators Raoul and Haine).
¶ 142 There was a lot to that exchange, not all of it striking us as entirely accurate, but the
important and unmistakable takeaway, at least for the County’s purposes, is that it supports the
notion that the drafters of the Amendment did not intend to sequester transportation-related tax
revenues that Cook County spends pursuant to its home-rule authority. Senator Raoul mentioned
nearly every single tax that is the subject of the complaint here, asking whether the Amendment
prevented the County from spending those tax revenues as it deemed appropriate—that is, for
public safety and not transportation—and the sponsor’s answer was clear: the Amendment did
not preempt Cook County’s constitutional home-rule authority to spend those revenues as it sees
fit. It is hard to get more on-the-nose than that.
¶ 143 The legislative debates thus support the interpretation the County advances and which
struck us as the more reasonable of the competing interpretations. The Amendment restricts the
spending of transportation-related tax revenues when the spending of that revenue is dictated by
state law, but it does not impact a home-rule unit’s spending of revenue pursuant to its
constitutional home-rule spending power.
¶ 144 2
¶ 145 We also consult the explanations of the Amendment that were published and sent to the
voters of this State, as required by the Constitution. See Ill. Const. 1970, art. XIV, § 2(b)
(“Amendments proposed by the General Assembly shall be published with explanations, as
provided by law, at least one month preceding the vote thereon by the electors.”). This, in our
view, should have prominent importance. After all, the General Assembly didn’t put this
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Amendment into the Constitution—it just put it on the ballot. The citizens of this State adopted
this Amendment by their vote at the November 2016 general election. So it seems only fair and
appropriate that we consider what the people of Illinois were told about this Amendment before
they cast their vote.
¶ 146 The ballot summary from the Secretary of State printed the language of the Amendment
in full and then provided an explanation of the Amendment as well as arguments for and against
its adoption. The ballot summary’s “explanation” read as follows:
“The proposed amendment adds a new Section to the Revenue Article of the
Illinois Constitution that provides revenue generated from transportation related taxes and
fees (referred to as ‘transportation funds’) shall be used exclusively for transportation
related purposes. Transportation related taxes and fees include motor fuel taxes, vehicle
registration fees, and other taxes and user fees dedicated to public highways, roads,
streets, bridges, mass transit (buses and rail), ports, or airports.
Under the proposed amendment, transportation funds may be used by the State or
local governments only for the following purposes: (1) costs related to administering
transportation and vehicle laws, including public safety purposes and the payment of
obligations such as bonds; (2) the State or local share necessary to secure federal funds or
for local government transportation purposes as authorized by law; (3) the construction,
reconstruction, improvement, repair, maintenance, and operation of highways, mass
transit, and railroad crossings; (4) expenses related to workers’ compensation claims for
death or injury of transportation agency employees; and (5) to purchase land for building
highways or buildings for to be used for highway purposes.
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This new Section is a limitation on the power of the General Assembly or a unit
of local government to use, divert, or transfer transportation funds for a purpose other
than transportation. It does not, and is not intended to, impact or change the way in which
the State and local governments use sales taxes, including the sales and excise tax on
motor fuel, or alter home rule powers granted under this Constitution. It does not seek to
change the way in which the State funds programs administered by the Illinois Secretary
of State, Illinois Department of Transportation, and operations by the Illinois State Police
directly dedicated to the safety of roads, or entities or programs funded by units of local
government. Further, the Section does not impact the expenditure of federal funds, which
may be spent for any purpose authorized by federal law.” (Emphases added.)
¶ 147 By and large, its first two paragraphs merely parrot the language of the Amendment
itself. Plaintiffs highlight the phrase, “transportation funds may be used by the State or local
governments only for the following purposes.” No distinction between which kinds of revenues,
in other words. Plaintiffs are correct that the language is broadly worded. But the third paragraph
goes into specifics, including, of course, the very specific language that the Amendment is not
intended to “alter home rule powers granted under this Constitution.” That language quite
explicitly carves out an exception to the more general statement on which plaintiffs rely.
¶ 148 We can harmonize those two passages under the County’s read of the ordinance. The
notion that “transportation funds may be used by State or local governments only for the
following [transportation-related] purposes” is not inaccurate. The Amendment will restrict
local-government spending—except when a local government is spending under its “home rule
powers,” as the later phrase qualifies.
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¶ 149 We cannot, on the other hand, harmonize this language under plaintiffs’ read of the
Amendment. There is no way to take plaintiffs’ interpretation as doing anything but “alter[ing]
home rule powers.” Plaintiffs say we are wrong, that this language about not altering home-rule
powers is just a “passing comment” that “means only that the amendment was not intended to
change the constitution’s general formulation of home rule powers or to change the
constitution’s allocation of authority between the State government and home rule units of
government.”
¶ 150 That can’t be. Nobody reading the Amendment (or the ballot summary) would have
thought it was so dramatic as to “change the constitution’s general formulation of home rule
powers,” any more than it would have been read to change the general formulation of the
General Assembly’s powers. And in fact, under the County’s interpretation, the Amendment
does not “change the constitution’s allocation of authority between the State government and
home rule units of government.” While plaintiffs are correct that the Amendment does not say
“that home rule units would be exempt from the amendment or excused from complying with it,”
that’s because home-rule units are not “exempt” entirely from this Amendment. If they are
receiving funds from the State or dictated in any other way by the State as to how to spend
transportation-related tax revenues, they are restricted by the Amendment. It is only when a
home-rule unit is exercising its own home-rule spending authority that the Amendment does not
apply.
¶ 151 The ballot summary’s “arguments in favor of the proposed amendment” told the voters
this:
“Historically, the State and units of local government have used portions of revenue from
transportation funds for other purposes. Approval of this amendment will ensure that
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transportation funds are used only for transportation purposes. This limitation provides a
dedicated source of funding for projects that will increase the quality of Illinois’ roads,
bridges, bridge and road safety inspections, and mass transit. Improving the quality of our
roads and highways will help reduce accidents and damage to vehicles caused by road
conditions or hazards.”
¶ 152 We find nothing in that language inconsistent with our interpretation, nor anything that
remotely suggests that home-rule units’ ability to exercise their home-rule spending power as
they see fit is impacted by the Amendment. Nor do we find anything inconsistent in the
published “arguments against the proposed amendment” sent to the voters:
“Approval of the proposed amendment unnecessarily limits the power of the State and
local governments to appropriate public revenues for the general welfare of all Illinoisans
in order to protect funding for one particular purpose—transportation. Our elected
officials should be asked to prioritize the use of public funds, but this amendment would
restrict their ability to spend funds as the elected officials and taxpayers deem fit. As a
result, elected officials may be asked to reduce funding for other priorities, such as
education or social service programs.”
¶ 153 This language is broadly worded but can easily fit within the County’s interpretation. The
State and, to a significant degree, local governments are “restrict[ed]” in how they spend certain
forms of revenue under the Amendment. And the results of that restriction are just as described;
officials will not be able to spend those funds on other priorities.
¶ 154 We do not find the ballot summary inconsistent with the County’s interpretation. We
would, on the other hand, find it hard to square the ballot summary with plaintiff’s broader
interpretation.
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¶ 155 3
¶ 156 Though we find the legislative debates and the Secretary of State’s published
explanations consistent with the County’s (and our preferred) interpretation of the Amendment,
we comment on one other item called to our attention by both parties and capable of judicial
notice, in any event—recent legislation passed by the General Assembly on this topic. In 2019,
the General Assembly adopted Public Act 101-32, which among other things created the
“Transportation Funding Protection Act.” See Pub. Act 101-32 (eff. June 28, 2019) (adding 30
ILCS 178/5-10). The substantive law reads in its entirety as follows:
“(a) It is known that transportation funding is generated by several transportation
fees outlined in Section 2 of the Motor Fuel Tax Act, Section 5-1035.1 of the Counties
Code, Section 8-11-2.3 of the Illinois Municipal Code, and Sections 3-805, 3-806, 3-815,
3-818, 3-819, 3-821, and 6-118 of the Illinois Vehicle Code.
(b) The proceeds of the funds described in this Act and all other funds described
in Section 11 of Article IX of the Illinois Constitution are dedicated to transportation
purposes and shall not, by transfer, offset, or otherwise, be diverted by any local
government, including, without limitation, any home rule unit of government, to any
purpose other than transportation purposes. This Act is declarative of existing law.” Id.
¶ 157 This act is consistent with the County’s interpretation of the Amendment. For one thing,
the taxes and fees listed in subsection (a) are obviously all statutorily authorized—the statutes are
mentioned right there in the language—and thus carry with them statutorily dedicated purposes
for which the revenues may be spent. And the reference to “other funds described in” the
Amendment is a reference to revenues generated pursuant to laws like the one the legislators
mentioned in debate, the Regional Transportation Authority Act, a statute that authorize non-
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home-rule unit taxes and prescribes how those revenue may be spent by that unit, the RTA. See
70 ILCS 3615/1.01, 1.04, 4.03, 4.03.1 (West 2018).
¶ 158 For another thing, this legislation does not preempt home-rule authority, because it does
not contain the requisite language specifically preempting home-rule powers. See 5 ILCS 70/7
(West 2018). And the reason it doesn’t preempt home-rule power is that it’s only referring to a
home-rule unit’s spending of tax proceeds pursuant to statute, where home-rule powers do not
come into play. If this legislation were intended to restrict the home-rule power to spend, the
preemption language would be required. See Ill. Const. 1970, art. VII, § 6(i); Palm, 2013 IL
110505, ¶ 36; 5 ILCS 70/7 (West 2018). Its absence speaks volumes.
¶ 159 Thus, subsection (b)’s reference to home-rule units of local government is simply a
recognition, consistent with the County’s read of the Amendment, that home-rule units spending
transportation tax revenues under statutory authority (not their own independent constitutional
authority) must spend the money on transportation purposes. That is why the language in the act
indicates that its provisions are “declarative of existing law”—that is, declarative of what the
Amendment already says. Pub. Act 101-32 (eff. June 28, 2019) (adding 30 ILCS 178/5-10(b)).
¶ 160 In sum, all of the extrinsic information that might inform us of the Amendment’s intent
points to the same conclusion that struck us as the most reasonable as well: The Amendment
protects from diversion those revenues from transportation-related taxes whose expenditure is
authorized by statute. The Amendment does not sequester revenues from transportation-related
taxes spent by home-rule units pursuant to their independent constitutional spending power.
¶ 161 D
¶ 162 Plaintiffs complain that our interpretation renders the Amendment toothless. They say if
the protections in the Amendment are based only on what is contained in a statute, and a statute
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may be amended at any time by the General Assembly, then the General Assembly could
essentially legislate the Amendment out of existence through statutory changes to these laws.
The County, for its part, and to our surprise, agrees—it likewise sees the logical extension of its
position to be that the General Assembly can always amend statutes and remove transportation
purposes from the statutory authorization for spending these moneys.
¶ 163 On this point, we disagree with the County. This Amendment is anything but toothless.
Subsection (d) of the Amendment states that “[n]one of the revenues described in subsection (a)
of this Section shall, by transfer, offset, or otherwise, be diverted to any purpose other than those
described in subsections (b) and (c) of this Section.” Ill. Const. 1970, art. IX, § 11(d). This
language is easily broad enough to restrict the various statutory actions the General Assembly
may take to circumvent the Amendment—sweeps by the General Assembly from one fund to
another, or legislative attempts to eliminate transportation purposes from statutory spending
authorizations (or add non-transportation purposes to those statutes).
¶ 164 The point of the Amendment is to sequester transportation tax revenues from the moment
they are generated until the moment they are spent—on transportation purposes. Subsection (d),
as we read its broad language, would follow that money wherever it went and thwart any
legislative attempt to divert those funds to other spending purposes. We fail to see how the
General Assembly could “legislate around” the restrictions in the Amendment. We thus find no
merit to the claim that our interpretation would render the Amendment functionally impotent.
¶ 165 E
¶ 166 The County argues that, because the Amendment is “only applicable to situations
involving governments’ use of transportation-related monies as specified by an applicable statute
and is thus inapplicable to the County under the circumstances of the instant case,” the lawsuit
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was properly dismissed. We agree, as we have said, with the County’s interpretation of the
Amendment. And we agree with its suggested disposition as well.
¶ 167 The taxes imposed by the County that are the subject of the complaint are six different
taxes. The County spends the revenue from each of these taxes pursuant to its home-rule
spending power, not in accordance with a statute. The Amendment thus does not restrict, or
govern in any way, the spending of these tax revenues. We agree with the County that the
complaint fails to state a claim for a constitutional violation and was properly dismissed.
¶ 168 CONCLUSION
¶ 169 The judgment of the circuit court is affirmed.
¶ 170 Affirmed.
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No. 1-19-0396
Cite as: Illinois Road & Transportation Builders Ass’n v. County of
Cook, 2021 IL App (1st) 190396
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CH-
2992; the Hon. Peter Flynn, Judge, presiding.
Attorneys Gino L. DiVito, John M. Fitzgerald, and Amanda N. Catalano,
for of Tabet DiVito & Rothstein LLC, of Chicago, for appellants.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil
for Stein, Martha Victoria Jimenez, and James Beligratis, Assistant
Appellee: State’s Attorneys, of counsel), for appellee.
52