Cook County Record

Thursday, July 18, 2019

Court battle could decide how Illinois governments can spend gas tax money

By Jonathan Bilyk | Jul 2, 2019


Across the state of Illinois, drivers awoke on Monday, July 1, facing higher prices at gas pumps. And so they will every July 1, hereafter.

The reason? Illinois’ new higher tax on the sale of gasoline and other motor fuels. The state doubled the taxes on gasoline from 19 cents to 38 cents per gallon, and increased the tax on diesel by 24 cents a gallon. And the tax is set to increase annually by another 1% every year, beginning in 2020.

That tax increase was passed by a bipartisan vote in the General Assembly, dominated by Democrats, and signed by Democrat Gov. JB Pritzker, with the support of business groups, including the Illinois Chamber of Commerce and others.


Illinois Chamber President Todd Maisch | Illinois Chamber of Commerce

According to supporters, the gas tax and a host of other fees, including the price paid for license plate stickers, were sharply hiked to raise billions of dollars in new revenue to pour into new asphalt, concrete and steel, to improve the state’s roads, bridges, transit systems and other transportation-related infrastructure.

According to an amendment placed into the Illinois state constitution by an overwhelming majority of Illinois voters in 2016 – the so-called transportation lockbox amendment - the state government and various units of local government, such as cities and counties, can only spend the money raised from the increased gas taxes and other taxes and fees on transportation.

But just what qualifies as “transportation” spending in Illinois remains an open question – a question which could be answered by the courts in coming days, as a lawsuit wends its way through the appeals process.

“Illinois government has consistently proven itself to be tricky, and non-transparent,” said Ted Dabrowski, an Illinois public fiscal policy analyst and president of policy-analysis site Wirepoints. “I would not be surprised to see a loose definition of ‘transportation’ here.”

WHAT IS 'TRANSPORTATION-RELATED'?

In 2018, a coalition of road contractors, their trade associations and others sued Cook County, claiming the county had mishandled nearly $250 million in tax money. Specifically, the coalition, led by the Illinois Road and Transportation Builders Association, asserted the county had diverted the money, which was generated from county gas taxes and four automobile-related taxes, to fund public safety operations and projects at various county offices associated with the criminal justice system.

The road contractors said this diversion violated the transportation lockbox amendment, which should have forced the county to spend the money directly on roads and other transportation infrastructure projects.

Cook County responded to the lawsuit by arguing the lockbox amendment, also known as the Safe Roads Amendment, doesn’t force the county or any other unit of government to actually spend the money on road or transit construction at all.

Rather, they said, the state constitution still allows governments in Illinois to distribute their transportation dollars to meet needs, as the government sees fit, without fear of interference from road builders and others who they said are simply seeking to force governments to award them contracts.

In February, Cook County Circuit Judge Peter Flynn sided with the county government’s view on the constitutional question.

The judge said the power to decide how to spend transportation money should be left to lawmakers in Springfield, or on local councils, like the Cook County Board of Commissioners.

“The proper recourse for the relief plaintiffs seek here … is ‘ in a legislative forum rather than in the courts,’” Flynn wrote. “If the plaintiffs here wish to achieve ‘authorized by law’ earmarks, the General Assembly is the forum.

“If they wish to have more contract proposals on which to bid (and thereby compete among themselves) the Cook County Board is the forum.

“In neither instance, however, is the judicial system the appropriate arbiter.”

Flynn’s ruling prompted the contractors’ coalition to appeal, asserting Judge Flynn’s judgment on this question was askew.

In a brief filed with the Illinois First District Appellate Court, the contractors said the lockbox amendment would be “rendered meaningless” and its “plain language” rewritten, should Flynn’s ruling be allowed to stand.

“Under the circuit court’s interpretation, the Safe Roads Amendment means nothing and can be enforced by no one,” the contractors wrote. “That interpretation is wrong.”

The contractors particularly took issue with Flynn’s determination the term “transportation-related” could be “ambigiuous” and was open to a loose interpretation.

In his decision, for instance, Judge Flynn wrote: “Schools are transportation-related: Students and staff must get there. Courts are transportation-related. So are grocery stores (indeed, any brick-and-mortar businesses), theatres, parks, day care centers, and so forth. A moment’s thought will show that labeling something ‘transportation-related’ is not very helpful, and far from unambiguous.”

The contractors said this interpretation flies in the face of the “plain language” of the Safe Roads Amendment and of reason.

“It is simply not reasonable to suggest that, when the voters of Illinois approved the Safe Roads Amendment, they understood ‘transportation’ to refer to schools, courts, grocery stores, theatres, parks or day care centers,” the contractors wrote in their appellate brief. “When one hears that the government is imposing a tax on transportation, or is spending money on transportation, one does not normally think of schools, courts, grocery stores, theaters, parks or day care centers...

“The plain language of the Safe Roads Amendment therefore makes it abundantly clear what ‘other transportation purposes as authorized by law’ means in this context: such things as highways, roads, streets, bridges, mass transit, airports and vehicles.”

'CONSTANT VIGIL' REQUIRED?

The justices of the First District Appellate Court have yet to weigh in on the question.

When the court does, the decision could carry large implications.

Todd Maisch, president of the Illinois Chamber of Commerce, said his organization has followed the lawsuit’s path through the courts, and supports the road builders’ interpretation of the constitutional amendment.

He noted the Illinois Chamber filed a brief with the court seconding the contractors’ position.

“This kind of lawsuit sends a signal to other governments that taxpayers are watching and will take action,” Maisch said.

Maisch said the state’s business community, road builders and organized labor agreed the health of Illinois’ economy required the state to spend more money on the state’s roads and transit systems.

He said supporters of the bill secured language in the law expressly stating the taxes and fees raised under the infrastructure plan would be “protected” by the Safe Roads Amendment and “dedicated to transportation purposes.”

Maisch said he and the Chamber were “confident” the increased fuel taxes and other fees will be spent on roads and other clear transportation projects and “geared toward important projects.” For instance, more than $9 billion would be placed under the purview of the Illinois Department of Transportation, Maisch noted.

Maisch conceded, however, the question of what qualifies as “transportation purposes” in Illinois will remain a “gray area” and will require a “constant vigil” from taxpayers and others to ensure the money is spent on transportation-related projects, as the lockbox amendment language appears to require.

“Knowing government as we all do, they will push the boundaries,” Maisch said.

A spokesperson for Gov. Pritzker did not reply to questions from the Cook County Record on the topic.

Likewise, a spokesperson for the Illinois Road and Transportation Builders Association did not respond.

And a lawyer representing the IRTBA in is lawsuit against Cook County declined to comment.

Dabrowski, however, said Illinois residents should watch carefully to see how the tax money is spent in coming months and years.

Questions, he said, should center first on which projects are funded and prioritized under the plan.

While the money may be spent on “transportation,” Dabrowski said voters and taxpayers should ask whether new projects funded and authorized under the plan are truly needed.

“For this amount of money, the lack of transparency is phenomenal,” Dabrowski said. "It's hard to find comfort here."

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Organizations in this Story

Circuit Court of Cook County Illinois Chamber of Commerce Illinois First District Appellate Court Illinois General Assembly Illinois Governor J.B. Pritzker WirePoints