A state appeals panel says still more litigation and court proceedings are needed before judges can definitively answer whether Cook County's spending decisions amount to illegal use of transportation funds, in violation of the Illinois constitution's Safe Roads Amendment.
For now, however, the appeals court said a Cook County judge was wrong to shut down a court challenge to Cook County's 2023 budget, in which road and transportation builders have accused the county of illegally siphoning money that should be reserved for transportation projects to pay for other county expenses in at least 12 other county departments and agencies.
First District Appellate Justice David Ellis wrote the panel’s opinion, issued Dec. 7. Justices James Fitzgerald Smith and Nathaniel Howse concurred.
John Fitzgerald
| Tabet Divito & Rothstein
The litigation dates to 2018 when several associations of construction contractors sued Cook County in circuit court, claiming it violated the 2016 Safe Roads Amendment, which mandates that revenue collected from fees and taxes related to transportation must be spent on purposes related to transportation. The county responded by arguing the amendment doesn’t apply to home rule governmental units, and although that position prevailed in county and appeals courts, the Illinois Supreme Court rejected the position in April 2022 and sent the complaint back to circuit court.
There the action continued as the associations challenged Cook County’s 2023 budget proposal, with justices Ellis, Smith and Howse holding in a November 2022 opinion that courts lacked the power to tell the county board how to spend its money before it had enacted the budget.
“But now, after years of litigation, the question of whether the county is complying with the amendment is squarely before this court,” Ellis wrote in the most recent opinion. He said the issues on appeal were two summary judgements from Cook County Circuit Court Judge Alison Conlon, one holding the associations couldn’t challenge expenditures dating to 2016 and another in favor of the county regarding its fiscal 2023 spending.
Regardless of whether earlier rulings could be applied retroactively, the panel explained, the claims are moot because the old appropriations ordinances are expired. It further said the claims seeking an injunction regarding fiscal 2023 spending also would be moot with the close of that accounting period, but that doesn’t mean the associations are foreclosed from seeking declaratory relief.
“There are two well-recognized exceptions to the mootness doctrine,” Ellis wrote. “If the issue is capable of repetition yet evades review and the public interest exception.”
The panel said annual budget questions perfectly fit both exceptions, noting “it is long past time for the parties to have clarity on what the amendment does and does not require of the county.”
The amendment allows governments to spend transportation money on “the costs of administering laws related to vehicles and transportation,” and the panel said the dispute is what that clause entails. It noted a subsection defining the challenged phrase spells out “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.”
Ellis said the parties disagree on what constitutes a direct program expense and whether or to what extent the program or expense must relate to safety or enforcement. Regarding “direct program expense,” he wrote, the panel found it “a term of art unknown to Illinois law; no case law, statute, or constitutional provision uses that phrase, much less defines it.”
The panel parsed definitions of the individual words and collective phrases. It agreed with the county’s position that focus should fall on specific expenses and not the entire program under which those expenses operate, explaining “program” is an attributive noun and “it is the expenses that must relate to transportation enforcement or safety, not the program. There is simply no other way to read it without bastardizing the English language.”
According to the plaintiffs, the county has several programs where transportation money funds administrative or record keeping functions, including corrections, adult and juvenile probation and circuit court clerk finance and data entry. While noting the plaintiffs insist those expenses have no relation to transportation enforcement or safety, Ellis wrote the panel focused on distinctions between direct and indirect costs.
“The amendment promised the voters that only direct expenses of a program would be eligible for transportation funds,” Ellis wrote.” Allowing the county to group indirect costs into one program with a title reflecting them, magically transforming those costs into ‘direct’ program expenses, would violate that promise. It was thus error to uphold the spending of transportation funds for programs like these.”
Although it rejected the associations’ program-level argument, the panel expressed concern about remanding the complaint without addressing questions likely to generate another appeal, specifically whether “various departments of county government — Corrections, the State’s Attorney, the Public Defender, the Office of Chief Judge, to name a few — incur any expenses at all that ‘relate to’ transportation enforcement or safety?”
While acknowledging the complexities of tracking public expenditures through the criminal justice system as relates to traffic enforcement, the panel concluded that “if the county chooses to spend its transportation funds in the way it is doing — as opposed to, for example, simply appropriating transportation funds to the Department of Transportation for road construction and the like — it will have to justify any prorations it calculates.”
Finally, Ellis wrote, the principal reason for vacating Judge Conlon’s ruling regarding fiscal 2023 allocations is “because we do not know how the county spent its transportation funds.” Although the panel said some expenditures do appear to violate the amendment, the court had seen only an appropriations ordinance, not the actual expenses.
The panel examined the county’s methodology for allocating, prorating and reconciling money from its Transportation Fund, but said it still hasn’t seen the actual expenses attributed to transportation.
“Presumably, the comptroller has a (long) list of transportation-related expenses among 12 different departments deemed eligible for transportation funds, but the County has not shared it with us,” Ellis wrote. “We also do not know if the county attempted to ‘split’ certain expenses into one part transportation-related and one part not. We already gave examples of expenses that might be a mix of the two, such as food in the County Jail, some of which is served to transportation-related inmates and the rest to all other detainees. Did the county ‘split’ those expenses and, if so, was the percentage split correct?”
Because “a good deal of doubt remains,” Ellis said, summary judgement on the county’s behalf was not appropriate. But neither would it have been right to agree with the plaintiffs’ argument that no road money could go to any of the 12 contested departments.
The panel also noted it did not need to address the question of whether affidavits the county submitted should be stricken on the grounds they constituted telling the court how to interpret the law. However, the panel observed this was not a jury trial, agreed with Judge Conlon’s decision not to strike the testimony, and noted the information on how the county attempted to comply with the amendment “was vital” for trying to understand if that approach was constitutional.
The trade associations have been represented by attorneys from Tabet DiVito & Rothstein, of Chicago. The firm said its clients are evaluating all options for future action.
“The county collects over $200 million each year in transportation taxes, but it spends none of that money on its urgent transportation needs,” attorney John Fitzgerald said in a statement. “The county could easily comply with the Safe Roads Amendment simply by using those transportation funds to fix its crumbling transportation infrastructure. Unfortunately, the county has chosen a different path. The Appellate Court has allowed us to continue fighting the county’s unconstitutional diversion of transportation funds. That is a victory not only for the plaintiffs in this case, but for everyone who relies on the county’s roads, streets, bridges and mass transit, and for the almost 3.8 million Illinois citizens who voted to approve the Safe Roads Amendment.”