With about a quarter of a billion dollars on the line in what the county calls a “test case” that could affect cities and counties across Illinois, Cook County has squared off in court against a coalition of trade groups representing road builders, as the two sides have asked a judge to decide whether a new Illinois state constitutional amendment negates the county’s authority to decide how to apportion its transportation tax dollars.
Over the last two months, lawyers for the county and the road builders have filed competing briefs in Cook County Circuit Court, each asking Judge Peter Flynn to side with their take on whether the so-called “Safe Roads Amendment” also trims the home rule powers of Cook County and other units of local government throughout the state.
The case pulled into court in March, when the road builders sued the county, asking the judge to order the county to reroute nearly $250 million to directly fund projects to improve the county’s “failing” network of roads, bridges and other transportation infrastructure.
The case centers on the Safe Roads Amendment, which Illinois voters overwhelmingly approved in 2016, ostensibly requiring the state and all Illinois cities, villages, counties and townships to spend any money collected from taxes and fees on transportation, solely on transportation work and projects.
Amanda Catalano Tabet DiVito Rothstein
However, the road builders contend, since the passage of the amendment, the county has sent to its Public Safety Fund – which it uses to help pay for operations and projects at various county offices associated with the criminal justice system – hundreds of millions of dollars the road builders assert should have been spent directly on transportation projects.
The complaint specifically targets six county taxes, including four automobile-related taxes which the complaint says the county expected to collectively bring in nearly $240 million in fiscal year 2017.
Plaintiffs in the action include the Illinois Road and Transportation Builders Association; the Federation of Women Contractors; the 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; Underground Contractors Association of Illinois; and Illinois Concrete Pipe Association.
They assert they should be allowed to bring the lawsuit, because the county’s allegedly improper use of the money from those six taxes deprived their members of the opportunity to bid for road and transportation projects the builders collation says would have been otherwise funded.
In May, however, the county responded with a motion to dismiss the case, asserting the road builders’ view of the Safe Roads Amendment would allow them to use the lawsuit against Cook County as a “test case,” a harbinger of a litany of litigation to come against Illinois’ hundreds of other cities and counties.
Rather, the county argued the courts should harmonize the Safe Roads Amendment with the state constitution’s provisions for home rule, giving counties and cities, potentially including Chicago and others with the expanded leeway granted under home rule, the chance to distribute their transportation dollars to meet their needs, without fear of interference from road builders and others demanding the money be paid to contractors.
“… Such an interpretation would subject Illinois’ thousands of local governments to potential suit at any time … by transportation contractors and the like with an appetite for more construction contracts who will demand a ‘line-item accounting’ of how they spend their money, notwithstanding the time, resources, upheaval and inconvenience such demands would cause,” the county wrote in a memorandum in support of its May 1 dismissal request.
“Or the impact on local governments that may be unable to adequately respond to fiscal crises, natural or man-made disasters or other emergencies and, facing a shrinking tax base, may be presented with the dilemma of having to raise or rely upon other taxes simply so that they can fulfill their many other non-transportation-related governmental responsibilities … all in the name of providing transportation contractors with more ‘opportunities to work to improve the … failing transportation infrastructure,’” the county said.
While the Safe Roads Amendment did not contain any explicit exception for home rule authority, Cook County argued the constitutionally-required summary of the amendment provided to voters to explain the amendment, as well as debates among state lawmakers in the run-up to the vote on the amendment, indicated the amendment was never intended to diminish home rule powers to apportion money.
On June 1, however, the road builders responded to the county’s brief, asking the judge to simply interpret the plain text of the Safe Roads Amendment.
If state lawmakers had intended for the county’s argument to hold sway, they would have included such a home rule exception within the amendment, the road builders said – but lawmakers did not.
They further noted the constitution allows for home rule powers to be limited in specific situations with the approval of three-fifths of both houses of the General Assembly.
“If home rule powers can be limited by legislation, they certainly can be limited by a constitutional amendment,” the road builders said.
“Contrary to the underlying premise of the County’s legal analysis, this case does not concern the effect of legislation on home rule powers; it instead rests upon a new and unambiguous amendment to the Constitution,” the road builders argued.
While lawmakers may have argued over the impact of the amendment on home rule powers, and some may have asserted it would leave home rule unaffected, the road builders said the approved version of the amendment never included any such language.
“The County cannot use this extrinsic evidence to contradict or change the amendment’s language,” the road builders said.
“… Voters were promised that the amendment would prevent local governments from diverting transportation tax revenue to non-transportation purposes. Based on that promise, the voters approved the Safe Roads Amendment,” they said.
The judge has yet to rule on the question, and the case remains pending.
The county is represented by the Cook County State’s Attorney’s Office.
The road builders are represented by attorneys John M. Fitzgerald and Amanda N. Catalano, of the firm of Tabet DiVito & Rothstein LLC, of Chicago.