Aerial view of Interstate 90 and 94 crossing Interstate 55 in Chicago, Illinois. | iofoto
Saying lawyers for Cook County wish to effectively neuter a state constitutional amendment requiring Illinois governments to spend transportation tax money on actual transportation projects, lawyers for a coalition of road builder contractors have again asked a state appeals court to overturn a Cook County judge’s decision to allow county officials to spend that money on other priorities the road builders believe should be illegal under the state constitution.
For months, lawyers for both sides have filed competing legal briefs before the Illinois First District Appellate Court, arguing their interpretations of the state constitution’s transportation funding language is the correct one.
Earlier this month, lawyers for the road builders filed another brief, again pushing back against a judge’s determination that the courts are not the proper place to determine if transportation funds are being properly spent under the terms of the so-called Safe Roads Amendment.
John Fitzgerald | Tabet DiVito & Rothstein
“The amendment unambiguously prohibits the diversion of transportation tax revenue to purposes other than transportation,” the road builders wrote in the brief, filed Sept. 5. “In the County’s view, however, these restrictions impose no obligations on anyone.”
The road builders accused Cook County’s attorneys of attempting to “rewrite” the transportation funding amendment, “so that its restrictions and prohibitions are reduced to a mere suggestion that people should follow statutes.”
“No one should be surprised that the County prefers to avoid limitations on its power, even after those limitations have been approved by the voters and enshrined in our Constitution,” the road builders wrote. “But that is no basis for rewriting or eviscerating a constitutional amendment.”
In 2016, Illinois voters overwhelmingly approved the Safe Roads Amendment, ostensibly to create a so-called “lockbox,” requiring state and local governments in Illinois to spend money on transportation, if those funds were either raised through taxes placed on cars and other modes of transportation, or raised through taxes supposedly levied to pay for roads and public transportation.
In 2018, the Illinois Road and Transportation Builders Association and a coalition of other transportation contractor allies filed suit in Cook County Circuit Court against Cook County. In that complaint, the road builders coalition accused the county of violating the Safe Roads Amendment by misspending hundreds of millions of dollars raised through transportation taxes.
The complaint specifically targeted the county’s draws on six county taxes, including four automobile-related taxes, which the complaint said amounted to more than $240 million annually. The complaint noted the county instead has spent much of that money to fund public safety operations and projects at various county offices associated with the criminal justice system.
The county, in response, asked the judge to dismiss the lawsuit, asserting the amendment did not remove from the Cook County Board or other elected officials the power to distribute the transportation dollars to meet county needs.
To rule otherwise, the county said, 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…”
In February 2019, Cook County Judge Peter Flynn sided with the county, ruling the road builders’ reading of the state constitution was flawed. The judge said the road builders’ interpretation of the Safe Roads Amendment would conflict with the home rule powers the state constitution grants to the county and a number of other governments.
Judge Flynn further ruled the Safe Roads Amendment doesn’t interfere in the ability of the county to spend that money on road construction and other transportation infrastructure, but instead leaves it to the county’s elected officials.
“The proper recourse for the relief plaintiffs seek here … is ‘in a legislative forum rather than in the courts,’” Flynn said.
If the transportation contractors want to change how the county spends tax dollars, it needs to persuade lawmakers in Springfield or Chicago, the judge said.
The road builders coalition appealed, and has argued this interpretation is misguided and runs afoul of the “plain text” of the Safe Roads Amendment.
In their latest brief, the road builders assert the county has continued to misinterpret the state constitution. They said the county “identifies no ambiguity” in the amendment’s language. Rather, the county points to other sources, including legislative debates on the amendment and a ballot pamphlet that accompanied the Safe Roads Amendment when it was presented to voters.
The amendment, the county said, was intended to enforce laws dedicating certain tax money into so-called “special funds” and “prevent the ‘sweeping’ of the moneys contained in those special purpose funds into the (state’s) general revenue fund.”
The road builders assert this interpretation replaces the Safe Roads Amendment with “a constitutional amendment that does not exist, was never presented to the voters, and does not even resemble the Safe Roads Amendment,” and an amendment that would be “pointless.”
The road builders are represented in the case by attorneys John Fitzgerald, Gino DiVito and Amanda Catalano, of Tabet DiVito & Rothstein, of Chicago.
The outcome of the case could have far-reaching implications for the state and its transportation spending plans, particularly in the wake of the state's recent move to double the Illinois motor fuels tax and hike other transportation-related fees.
The dispute also places the First District Appellate justices in much the same position as their colleagues in Illinois’ Fourth District Appellate Court in Springfield, where the state has been sued over allegations it ignored language in the state constitution in issuing billions of dollars in bonds.
Specifically, the plaintiffs, Illinois Policy Institute chief executive John Tillman, suing in his individual capacity as an Illinois taxpayer, and New York-based investment fund and state bondholder Warlander, asserted the “specific purposes” identified by state lawmakers for the bonds were improper and not justifiable when compared to the discussions of the drafters of the state constitution in 1970.
In that case, Sangamon County Associate Judge Jack Davis II similarly ruled the matter doesn’t belong in court, because it amounted to a “political question” best left to lawmakers.
No appellate briefs have yet been filed in that case.