A coalition of road construction contractors have asked the Illinois Supreme Court to step into the first court fight over whether an Illinois state constitutional amendment can be used to force Cook County and other local governments to spend money from local transportation-related taxes on actual transportation projects, and not county operations.
This week, attorneys for the group, headlined by trade lobby group, the Illinois Road and Transportation Builders Association, filed a petition with the Illinois Supreme Court, seeking permission to appeal to the state high court of a state appellate court’s decision.
In that decision, a panel of the Illinois First District Appellate Court declared their belief that Cook County is free to spend transportation-related tax dollars as the county government deems fit, despite a state constitutional amendment intended to lock away transportation funding from being spent elsewhere.
In their petition to the state Supreme Court, the road builders said the high court needed step in to set the precedent that local governments – not just the state government – must abide by the language of the so-called Safe Roads Amendment, and dedicate transportation money to transportation projects.
“This is not only a matter of first impression, but one of great public importance,” the road builders wrote. “At stake are hundreds of millions of dollars in transportation tax revenue that, under a constitutional amendment that the people of Illinois overwhelmingly approved, must be invested in our transportation infrastructure.”
The road builders have tussled in court with Cook County since 2018, when the coalition of road construction professional and trade associations sued, accusing Cook County of violating the Safe Roads Amendment by continuing to plow nearly $250 million in transportation funding into operations funded by the county’s Public Safety Fund.
The county uses those funds to help pay for spending at the Cook County Sheriff’s Office and other county offices that work within the criminal justice system.
The Safe Roads Amendment, also known as the transportation lockbox amendment, was added by voters to the state constitution in 2016.
The amendment ostensibly requires the state and all units of government in Illinois to spend money collected from taxes and fees on transportation solely on transportation work and projects. The road builders argued the amendment should require Cook County and all Illinois local governments to dedicate the funding to roads, bridges, mass transit and other real transportation projects.
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.
However, Cook County and other local governments in Illinois have argued the amendment can’t be read as applying to taxes raised by home rule units of government, like Cook County, which are granted special powers under the Illinois state constitution.
The county cautioned that allowing the road builders’ interpretation would not only be opposed to the actual language of the amendment, but would open units of Illinois local governments to lawsuits from “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…,” the county wrote in a brief filed in Cook County court in 2018.
A Cook County judge and the First District Appellate Court backed the county’s interpretation.
Appellate justices said the language of the amendment appears to force the county to sweep its transportation tax revenues into the lockbox. However, they said that position is contradicted by other language in the amendment.
They said it is also contradicted by a lack of any language specifically applying the amendment’s lockbox restrictions to local home rule governments, which are given powers of their own under the state constitution.
The appellate justices said the amendment should be read to apply only to taxes and fees raised by state law – or, statutes – or governed by statute, not to taxes raised by a county ordinance, as Cook County’s were.
In their petition to the Supreme Court, the road builders described the appellate ruling as “erroneous.” They said the appellate justices “cobbled together” a reasoning that would allow them to impose restrictions on the reach of a constitutional amendment, that are not contained within the amendment itself.
They argued the appellate court’s interpretation of the Safe Roads Amendment would leave local governments all but free to ignore the amendment altogether.
And, further, the road builders argued, the appellate court’s interpretation would amount to a betrayal of voters who relied on the description that was presented to voters in 2016.
“The … voter’s guide stated that the Amendment would restrict how ‘transportation funds may be used by the State or local governments,’ without distinguishing between home-rule and non-home-rule units of local government,” the road builders wrote in their petition.
“And the same voter’s guide promised voters, ‘Approval of this amendment will ensure that transportation funds are used only for transportation purposes.’
“The appellate court’s interpretation of the Amendment simply does not square with that unqualified promise to the voters.”
Cook County has yet to reply to the petition, and the Illinois Supreme Court has not ruled on whether to accept the case.
The road builders are represented by attorneys Gino L. DiVito, John M. Fitzgerald and Amanda N. Catalano, of the firm of Tabet DiVito & Rothstein LLC, of Chicago.
The county has been represented by the office of Cook County State’s Attorney Kim Foxx, including assistant state’s attorneys Cathy McNeil Stein, Martha Victoria Jimenez and James Beligratis.