A.B.A.T.E. of Illinois, Inc. v. Giannoulias

Opinion

Filed 5/3/10 NO. 4-09-0069

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

A.B.A.T.E. of Illinois, Inc., and K. ) Appeal from GENE BEENENGA, ) Circuit Court of Plaintiffs-Appellants, ) Sangamon County v. ) No. 06CH363 ALEXI GIANNOULIAS, Treasurer, State of ) Illinois; DANIEL W. HYNES, Comptrol- ) ler, State of Illinois; and PAT QUINN, ) Governor, State of Illinois, in Their ) Honorable Official Capacities, ) Leo J. Zappa, Jr., Defendants-Appellees. ) Judge Presiding. _________________________________________________________________

PRESIDING JUSTICE MYERSCOUGH delivered the opinion of

the court:

Plaintiffs, A.B.A.T.E. of Illinois, Inc. (ABATE), and

K. Gene Beenenga, appeal the trial court's order granting the

motion of defendants Alexi Giannoulias, Daniel W. Hynes, and Pat

Quinn for summary judgment and denial of their motion to recon- sider. We affirm.

I. BACKGROUND ABATE is an Illinois general not-for-profit corporation

whose members are motorcycle enthusiasts. Beenenga is a member

of ABATE and a motorcyclist.

Through Public Act 82-649, effective January 1, 1982

(Pub. Act 82-649, §§ 1 through 7, eff. January 1, 1982 (1981 Ill.

Laws 3373-76)), the legislature enacted the Cycle Rider Safety

Training Act (Act) (Ill. Rev. Stat. 1981, ch. 95 1/2, pars. 801

through 807), which included a Cycle Rider Safety Training Fund

(CRST Fund) (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 806). The Illinois Department of Transportation (Department) was given the

"power, duty[,] and authority to administer [the] Act." Ill.

Rev. Stat. 1981, ch. 95 1/2, par. 803. That version of section 6

stated the following with respect to deposits into the CRST Fund:

"To finance the Cycle Rider Safety

Training program and to pay the costs

thereof, the Secretary of State will hereaf-

ter deposit in the State Treasury an amount

equal to $4.00 for each Annual Fee, and $2.00

for each Reduced Fee, for the registration of

each motorcycle, motor driven cycle[,] and

motorized pedalcycle processed by the Office

of the Secretary of State during the preced-

ing quarter, which amount the State Comptrol-

ler shall transfer quarterly to a special

fund to be known as 'The Cycle Rider Safety

Training Fund', which is hereby created and

which shall be administered by the Depart-

ment. Appropriations from the 'Cycle Rider

Safety Training Fund' shall be made by the

General Assembly only to the Department, and

shall only be used for the expenses of the

Department in administering the provisions of

this Act, for funding of contracts with ap-

proved Regional Cycle Rider Safety Training

Centers for the conduct of courses, or for

- 2 - any purpose related or incident thereto and

connected therewith. Whenever the total of

the amount currently in the Cycle Rider

Safety Training Fund and current grants to

the Department from the federal government

for cycle rider safety training in Illinois

exceed $1,200,000, the Department will notify

the Governor and the Governor may notify the

State Comptroller and State Treasurer of the

amount to be transferred from the Cycle Rider

Safety [Training] Fund to the Illinois Road

Fund so that said total approximately equals

$1,200,000, and, upon receipt of such notifi-

cation, the State Comptroller shall transfer

such amount to the Illinois Road Fund." Ill.

Rev. Stat. 1981, ch. 95 1/2, par. 806.

In January 1992, the legislature amended the former

version of section 6 of the Act when it enacted Public Act 87-838

(Pub. Act 87-838, §6, eff. January 1, 1993 (1991 Ill. Laws 4782,

4810)). The new version became section 6 of the Act (625 ILCS

35/6 (West 1992)). Public Act 87-838 amended section 6 of the

Act to allow funds in the CRST Fund to be transferred to the

General Revenue Fund by adding the following paragraph to section

6 of the Act:

"In addition to any other permitted use

of moneys in the Fund, and notwithstanding

- 3 - any restriction on the use of the Fund, mon-

eys in the Cycle Rider Safety Training Fund

may be transferred to the General Revenue

Fund as authorized by this amendatory Act of

1992. The General Assembly finds that an

excess of money exists in the Fund. On Feb-

ruary 1, 1992, the Comptroller shall order

transferred and the Treasurer shall transfer

$200,000 (or such lesser amount as may be on

deposit in the Fund and unexpended and

unobligated on that date) from the Fund to

the General Revenue Fund." 625 ILCS 35/6

(West 1992).

In December 1992, the legislature again amended section

6 of the Act when it overrode then Governor Jim Edgar's veto and

passed House Bill 1129, which became Public Act 87-1217, effec-

tive January 1, 1993 (Pub. Act 87-1217, §1, eff. January 1, 1993,

(1216 Ill. Laws 3775, 3775-76)). Because Public Act 87-1217

substantially changed section 6, we include it in its entirety

and emphasize what plaintiffs maintain are the substantive

changes to section 6 of the Act that are of import to this case:

"To finance the Cycle Rider Safety

Training program and to pay the costs

thereof, the Secretary of State will hereaf-

ter deposit with the State Treasurer an

amount equal to each annual fee and each

- 4 - reduced fee, for the registration of each

motorcycle, motor driven cycle[,] and motor-

ized pedalcycle processed by the Office of

the Secretary of State during the preceding

quarter as required in subsection (d) of

Section 2-119 of the Illinois Vehicle Code

[(625 ILCS 5/2-119 (West 1992))], which

amount the State Comptroller shall transfer

quarterly to a trust fund outside of the

State treasury to be known as the Cycle Rider

Safety Training Fund, which is hereby cre-

ated. In addition, the Department may accept

any federal, State, or private moneys for

deposit into the Fund and shall be used by

the Department only for the expenses of the

Department in administering the provisions of

this Act, for funding of contracts with ap-

proved Regional Cycle Rider Safety Training

Centers for the conduct of courses, or for

any purpose related or incident thereto and

connected therewith." (Emphases added.) 625

ILCS 35/6 (West Supp. 1993).

Effective June 20, 2003, the legislature enacted an act

relating to budget implementation (hereinafter BIMP), Public Act

93-32 (2004 BIMP) (Pub. Act 93-32, §50-5, eff. June 20, 2003

(2003 Ill. Legis. Serv. 400, 401 (West))), which amended the

- 5 - State Finance Act (30 ILCS 105/1 through 40 (West 2004)) (2004

State Finance Act). Relevant to this case are sections 8h (30

ILCS 105/8h (West 2004)), 8j (30 ILCS 105/8j (West 2004)), and

8.42 (30 ILCS 105/8.42 (West 2004)). These amendments authorized

the Treasurer and Comptroller to transfer amounts from certain

funds held by the State Treasurer, including the CRST Fund (30

ILCS 105/8.42 (West 2004)), and from additional amounts created

through the increase of fees to the General Revenue Fund upon

direction from the Director of the Bureau of the Budget. 30 ILCS

105/8h, 8j (West 2004).

Effective July 30, 2004, Public Act 93-839 (2005 BIMP)

amended the State Finance Act yet again. Public Act 93-839 (Pub.

Act 93-839, §10-100, eff. July 30, 2004 (2004 Ill. Legis. Serv.

1381, 1407-08 (West))) amended section 8h of the State Finance

Act to give the Governor the power to direct the Treasurer and

Comptroller to transfer money from any fund held by the State

Treasurer to the General Revenue Fund. 30 ILCS 105/8h (West

Supp. 2005).

Later, Governor Blagojevich issued "Fund Transfer

Notifications" directing the transfer of money from many of the

State's funds, including the CRST Fund, into the General Revenue

Fund. Defendants admit that $1,205,600 was transferred from the

CRST Fund to the General Revenue Fund pursuant to the 2004 BIMP.

On June 9, 2006, plaintiffs filed a motion for tempo-

rary restraining order, asking the trial court to restrain

defendants (Judy Baar Topinka was Treasurer and Rod Blagojevich

- 6 - was Governor at the time) from transferring funds from the CRST

Fund (and many other funds) to the General Revenue Fund. The

trial court granted the temporary restraining order.

On June 12, 2006, plaintiffs filed a class-action suit

for declaratory judgment, mandamus, preliminary injunction, and

permanent injunction against defendants barring the transfer of

funds from a number of funds, including the CRST Fund, to the

General Revenue Fund. In relevant part, plaintiffs alleged that

the transfer of funds from the CRST Fund to the State's General

Revenue Fund pursuant to Public Acts 93-32 and 93-839 were

unenforceable because the transfers were inconsistent with the

CRST Fund's "enabling statute" and the transfers violated several

constitutional provisions. On July 28, 2006, the trial court

denied the motion for preliminary injunction. In August 2006,

defendant Hynes filed a motion to dismiss that the trial court

denied.

On April 30, 2008, defendants filed a motion for

summary judgment. On August 12, 2008, plaintiffs filed a cross-

motion for summary judgment. On October 23, 2008, the trial

court granted summary judgment in favor of defendants. The court

granted the motion because "the BIMP's in question were passed

after the current CRSTF Act was enacted. The intent of the

legislature was clear, and the more recent legislation (i.e., the BIMPs), it can be implied, repealed the statute in question,

CRSTF." Moreover, the court found it was apparent from the fact

that the legislature acted to prohibit transfers from specific

- 7 - funds, but not the CRST Fund, that it intended the transfer from

the CRST Fund to take place. On January 5, 2009, the trial court

denied plaintiffs' motion to reconsider.

This appeal followed.

II. ANALYSIS

In this appeal, plaintiffs make two general arguments.

Plaintiffs argue that because the monies in the CRST Fund are

private, the legislature could not transfer the monies pursuant

to the 2004 and 2005 BIMPs without violating the takings clauses

of the Illinois and United States Constitutions. Plaintiffs also

contend that the 93rd General Assembly did not have the authority

to transfer CRST Fund funds into the General Revenue Fund because

the 87th General Assembly intended to place the CRST Fund beyond

the powers of later legislatures to sweep and accomplished this

by making the CRST Fund a "trust fund outside of the state

treasury."

An appellate court reviews a trial court's order

granting summary judgment de novo. Reppert v. Southern Illinois University, 375 Ill. App. 3d 502, 504, 874 N.E.2d 905, 907

(2007). "The purpose of summary judgment is not to try a ques-

tion of fact, but to determine whether one exists." Land v.

Board of Education of the City of Chicago, 202 Ill. 2d 414, 421,

781 N.E.2d 249, 254 (2002). Summary judgment is appropriate

where the pleadings, depositions, and admissions on file, to-

gether with any affidavits and exhibits, when viewed in the light

most favorable to the nonmoving party, indicate that there is no

- 8 - genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West

2006). "As in this case, where the parties file cross-motions

for summary judgment, they invite the court to decide the issues

presented as a matter of law." Liberty Mutual Fire Insurance Co.

v. St. Paul Fire & Marine Insurance Co., 363 Ill. App. 3d 335,

339, 842 N.E.2d 170, 173 (2005).

Further, the issue in this case is one of statutory

interpretation. This court reviews issues of statutory interpre-

tation de novo. Reppert, 375 Ill. App. 3d at 504, 874 N.E.2d at

907. Our supreme court recently stated the following with

respect to the rules of statutory construction:

"The primary rule of statutory construc-

tion is to give effect to the intent of the

legislature. The best evidence of legisla-

tive intent is the statutory language itself,

which must be given its plain and ordinary

meaning. The statute should be evaluated as

a whole. Where the meaning of a statute is

unclear from a reading of its language,

courts may look beyond the statutory language

and consider the purpose of the law, the

evils it was intended to remedy, and the

legislative history of the statute." Ultsch v. Illinois Municipal Retirement Fund, 226

Ill. 2d 169, 181, 874 N.E.2d 1, 8 (2007).

- 9 - "Where the language of a statute is plain and unambiguous, a

court need not consider other interpretive aids." Ultsch, 226

Ill. 2d at 184, 874 N.E.2d at 10.

Plaintiffs contend the transfer of the funds violates

the takings clause of both the Illinois and United States Consti-

tutions because it would be a taking of private monies. The

federal takings clause is found in the fifth amendment and

provides the following: "nor shall private property be taken for

public use, without just compensation." U.S. Const., amend. V.

This provision is made applicable to the states through the

fourteenth amendment (U.S. Const., amend. XIV). Southwestern Illinois Development Authority v. National City Environmental,

L.L.C., 199 Ill. 2d 225, 235, 768 N.E.2d 1, 7 (2002). The

Illinois takings clause is found in article I, section 15, of the

Illinois Constitution and provides: "Private property shall not

be taken or damaged for public use without just compensation as

provided by law." Ill. Const. 1970, art. I, §15.

Plaintiffs argue Thompson v. Kentucky Reinsurance Ass'n, 710 S.W.2d 854 (Ky. 1986), has "startlingly" similar facts

and is therefore persuasive. In Thompson, the issue on appeal

was whether Kentucky's General Assembly could divert funds from

the Kentucky Reinsurance Association (KRA), a statutorily created

Kentucky nonprofit corporation, which operated entirely on

premiums collected from Kentucky insurance carriers licensed to

write workers compensation insurance, Kentucky self-insurance

groups, and Kentucky self-insured employers. Thompson, 710

- 10 - S.W.2d at 855. Kentucky's legislature attempted to transfer the

premiums paid to the KRA into the state's general revenue fund.

Thompson, 710 S.W.2d at 857. Kentucky's supreme court found the

legislature did not have this power because the funds were

"clearly private funds." (Emphasis omitted.) Thompson, 710

S.W.2d at 857. The fund from which the Kentucky legislature

attempted to transfer money received its income solely "from

premiums charged its subscribers-insurance carriers, self-insur-

ance groups, and self-insured employees." Thompson, 710 S.W.2d

at 857.

Plaintiffs also claim this case is similar to Illinois Clean Energy Community Foundation v. Filan, 392 F.3d 934 (7th

Cir. 2004). There, the State argued it could require the trust-

ees of a charitable trust that the Interstate Commerce Commission

had required Commonwealth Edison to establish with proceeds from

the sale of seven of Commonwealth Edison's power plants to turn

over up to $125 million to the State's treasury and environmental

agencies upon written demand by the State's budget director.

Illinois Clean Energy, 392 F.3d at 936. Even though the state

created the trust, it was independent of the State and was funded

by private money. Illinois Clean Energy, 392 F.3d at 936-37.

Therefore, the State could not confiscate any of the trust's

assets. Illinois Clean Energy, 392 F.3d at 938.

However, both Thompson and Illinois Clean Energy are

distinguishable from the case sub judice in that the fees col- lected and placed into the CRST Fund are fees charged by the

- 11 - State for the privilege of operating a motorcycle. The fees are

not received from insurance premiums and held by a separate

corporation such as the KRA as in Thompson. Similarly, the

monies in the CRST Fund are not from the sale of a private

corporation's assets with the proceeds being used, at the State's

direction, to create a foundation or trust as in Illinois Clean

Energy.

The case here is also different from City of Chicago v.

Holland, 206 Ill. 2d 480, 493, 795 N.E.2d 240, 248 (2003),

another case cited by plaintiffs, where the funds at issue were

primarily generated through federal grants and self-generated

revenue through fees paid by airlines, passengers, and tenants of

airports. The money in the CRST Fund is collected by the Secre-

tary of State from motorcyclists who are paying for the privilege

of operating a motorcycle in Illinois (much like owners of

automobiles pay fees to register their cars), held by the State

Treasurer, and administered by the Department. See 625 ILCS 35/6

(West 1992).

Defendants argue that while section 6 of the Act

authorizes federal money and private donations to be placed in

the fund, plaintiffs have actually offered no evidence that any

federal or private monies were transferred into the CRST Fund or

that the money transferred pursuant to the 2004 and 2005 State

Finance Acts were those monies other than the public funds

collected by the Secretary of State. In other words, the record

reflects no private money or restricted federal funds were

- 12 - transferred from the CRST Fund to the General Revenue Fund.

Section 6 also authorizes the Department to accept State funds to

be placed in the CRST Fund. 625 ILCS 35/6 (West 1992). Because

no record evidence shows any private monies were transferred from

the CRST Fund to the General Revenue Fund, plaintiffs cannot show

any private money was taken, an essential element of showing a

violation of the takings clause of the Illinois and United States

Constitutions.

As stated, plaintiffs also make and, for the sake of

argument, we will accept as true, the following arguments: (1)

the plain language of the Act shows the legislature created a

trust and placed it outside the State Treasury with the intent

that no General Revenue Funds could be placed in the trust, (2)

the December 1992 amendments show the legislature intended to

change the CRST Fund from a special fund inside the State Trea-

sury to a trust fund outside the State Treasury and to deprive

the legislature of the power to transfer funds from the CRST Fund

into the General Revenue Funds, and (3) the legislative history,

including the Governor's veto message and legislative debates,

shows the legislature intended to place the CRST funds beyond the

power of later legislatures to sweep. However, even accepting

these arguments as true, we conclude the legislature had the

authority to enact the 2004 and 2005 BIMPs that enabled the

transfer of funds from the CRST Fund into the General Revenue

Fund.

Both plaintiffs and the dissent would have us apply the

- 13 - general rules of trusts to the CRST Fund created by the Act and

hold that the legislature was without the power to transfer funds

from the CRST Fund to the General Revenue Fund. Illinois, like

most jurisdictions, follows the general rule that "a settlor

cannot modify or revoke a trust unless he has reserved the power

to do so in the trust agreement." Williams v. Springfield Marine

Bank, 131 Ill. App. 3d 417, 419, 475 N.E.2d 1122, 1124 (1985).

Here, the General Assembly did not reserve to itself in the Act

the power to revoke or modify the terms of the trust when it

created the trust. While we have been unable to find any Illi-

nois case law addressing whether the general rules of trusts

apply to the legislature in circumstances similar to those

present in the case sub judice, at least two courts from other jurisdictions have refused to apply the general principle that a

settlor does not have the power to revoke or modify the terms of

a trust unless they explicitly reserved that power to the legis-

lature. See Barber v. Ritter, 196 P.3d 238, 253-54 (Colo. 2008)

(where the Colorado Supreme Court recognized the legislature did

not reserve the right to modify or revoke the terms of the

statute creating the trust but concluded the legislature had the

power to do so to allow the transfer of funds from the trust fund

into the general revenue fund); Board of Trustees of the Tobacco Use Prevention & Control Foundation v. Boyce, Nos. 09AP-768,

09AP-769, 09AP-785, 09AP-786, 09AP-832, 09AP-833 cons. (Ohio

App. December 31, 2009) (where the court refused to apply the

general rule and find the legislature created an irrevocable

- 14 - trust because a legislature has no power to bind future legisla-

tures).

In Barber, the petitioners argued that three funds from

which monies were transferred into the general revenue fund were

public trusts and the transfer of monies from those funds into

the general revenue fund constituted a misappropriation of the

trust corpus. Barber, 196 P.3d at 252-53. The Colorado Supreme

Court accepted for the sake of argument, without deciding, that

the three funds were public trusts. Barber, 196 P.3d at 253.

The Barber court stated that the petitioners' argument turned on the implicit premise that the Colorado General Assembly

lacked the authority to alter or amend the statutes creating the

trusts. Barber, 196 P.3d at 253. Therefore, the amendments

providing for the transfer were ineffective and "constituted a

misappropriation of the trust corpus." Barber, 196 P.3d at 253.

Specifically, the petitioners argued "the General Assembly's lack

of power to amend the statutes in question arises from the

special status of the funds created by those statutes as trusts."

Barber, 196 P.3d at 253. The court noted that Colorado follows the view that

once a trust is created it cannot be revoked by the settlor

without all of the beneficiaries' consent unless the settlor

explicitly reserved the power to do so unilaterally. Barber, 196

P.3d at 253. However, the court concluded the legislature could

not limit its absolute power to appropriate funds by creating an

irrevocable public trust:

- 15 - "None of the statutes creating the funds

explicitly reserve to the General Assembly

the power as settlor to revoke or amend them.

However, we have repeatedly recognized that

the General Assembly's power over appropria-

tions is constitutionally derived and have

characterized this power as 'absolute' and

'plenary.' [Citation.] *** To hold that

the General Assembly could limit this plenary

power to appropriate by creating an irrevoca-

ble public trust would be to effectively hold

that the General Assembly could abrogate its

constitutional powers by statute. This is

not the law. *** We therefore decline to

read the cash funds' enabling legislation as

creating irrevocable trusts that would uncon-

stitutionally restrain the legislature's

plenary power over appropriations.

The status of the three cash funds as

public trusts does not, and constitutionally

cannot, have any limiting effect on the leg-

islature's plenary power to amend or repeal

those funds' enabling statutes. The legisla-

ture's amendment of the cash funds' enabling

statutes to allow for the transfer of funds

to the General Fund did not, therefore, con-

- 16 - stitute a misappropriation of the trust cor-

pus, and did not trigger a fiduciary obliga-

tion to repay the transferred monies. Thus,

we hold that, even if the cash funds are

public trusts, they are not irrevocable

trusts, and the legislature has the authority

to amend them to allow for the transfer of

monies to the General Fund." (Emphasis in

original.) Barber, 196 P.3d at 253-54.

Similarly, an Ohio appellate court (Boyce, slip op. at 9) followed the reasoning of Barber and upheld the transfer of

money from an endowment fund (admittedly classified as state

funds) into the general fund. In doing so, the Boyce court

recognized the principle that one General Assembly cannot bind

successive legislatures is a constitutional principle "derived

from the General Assembly's plenary power to legislate as to any

matter, except as limited by the state and federal

[c]onstitutions." Boyce, slip op. at 20.

It is "well accepted in [Illinois] that the constitution is

not regarded as a grant of powers to the legislature but is a

limitation upon its authority; the legislature may enact any

legislation not expressly prohibited by the constitution."

People ex rel. Chicago Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 525, 558 N.E.2d 89, 94 (1990). As stated, plain-

tiffs have not shown a taking of private funds prohibited by

either the Illinois or federal constitution and we have found no

- 17 - other constitutional provision prohibiting the transfers.

Additionally, Illinois courts have stated that "[t]he

legislature is *** the sole and exclusive authority for the

appropriation of the funds of the state." Galpin v. City of

Chicago, 159 Ill. App. 135, 153 (1910). Moreover, "[t]he trans-

fer of money accumulated in one fund into a general revenue fund

is generally within the province and authority of the legisla-

ture." Terra-Nova Investments v. Rosewell, 235 Ill. App. 3d 330,

340, 601 N.E.2d 1109, 1117 (1992); see also Valstad v. Cipriano,

357 Ill. App. 3d 905, 917-18, 828 N.E.2d 854, 868 (2005).

Further, the actions of one legislature cannot bind future

legislatures. See Polich v. Chicago School Finance Authority, 79 Ill. 2d 188, 200-01, 402 N.E.2d 247, 252 (1980); see also Choose

Life Illinois, Inc. v. White, 547 F.3d 853, 858 n.4 (7th Cir.

2008) ("It is axiomatic that one legislature cannot bind a future

legislature"). As shown, Illinois follows the same principles

the Barber and Boyce courts used to come to their respective

decisions that their state's respective legislatures had the

power to amend the statutes in question to allow for the transfer

of funds held in a trust created by the legislature, even though

that power was not explicitly reserved in the statutes creating

those trusts, into the General Revenue Fund. We adopt the Barber and Boyce courts' reasoning and conclude the Illinois legisla-

ture, by enacting the 1992 amendments to the Act, did not create

an irrevocable trust and therefore had the authority to transfer

funds from the CRST Fund into the General Revenue Fund via the

- 18 - 2004 and 2005 BIMPs.

Because of our conclusion, we must look to what the

later Public Acts 93-32 and 93-839 accomplished. The 2004 BIMP

specifically authorized the interfund transfer at issue here as

the CRST Fund is one of the funds listed from which the legisla-

ture authorized money to be transferred to the General Revenue

Fund. 30 ILCS 105/8.42 (West 2004). Also of note, section 8.42

states, "All such transfers shall be made on July 1, 2003, or as

soon thereafter as practical. These transfers may be made

notwithstanding any other provision of law to the contrary."

(Emphasis added.) 30 ILCS 105/8.42 (West 2004).

This language shows the legislature's intent to autho-

rize these transfers in a time of our state's fiscal crisis in

spite of any statute previously in existence that states other-

wise. Moreover, section 8h of the State Finance Act authorized

the Director of the Bureau of the Budget to order the State

Treasurer and State Comptroller to transfer a specified fund from

any fund held by the State Treasurer. The CRST Fund is held by

the State Treasurer (see 625 ILCS 35/6 (West 1992) ("Secretary of

State will hereafter deposit in the State Treasury")). Further,

if the legislature had intended to exempt the CRST Fund from

these transfers, the legislature could have done so explicitly as

it did with restricted federal funds, the Motor Fuel Tax Fund,

the Criminal Justice Information Systems Trust Fund, and other

funds listed. See Pub. Act 93-32, §50-5, eff. June 20, 2003

(2003 Ill. Legis. Serv. 400, 401-02 (West)); Pub. Act 93-839,

- 19 - §10-100, eff. July 30, 2004 (2004 Ill. Legis. Serv. 1381, 1402-04

(West)). These legislative enactments show the 93rd General

Assembly intended to authorize the transfer of CRST Fund monies

into the General Revenue Fund.

III. CONCLUSION

For the reasons stated, the 2004 and 2005 BIMPs are

constitutional and enforceable. Therefore, we affirm the trial

court's judgment.

Affirmed.

POPE, J., concurs.

APPLETON, J., dissents.

- 20 - JUSTICE APPLETON, dissenting:

I respectfully dissent from the majority's decision.

By the 1992 amendment to section 6 (625 ILCS 35/6 (West 1992)),

the legislature declared an express trust. Illinois residents 16

years of age or older with a valid driver's license have a

beneficial interest in the "trust fund." That beneficial inter-

est is property, which the State cannot take without violating

the takings clause of the Illinois Constitution (Ill. Const.

1970, art. I, §15). The budget-implementation plans are uncon-

stitutional insomuch as they take amounts already deposited in

the trust fund and transfer those amounts to the General Revenue

Fund.

A. An Express Trust

1. The Capacity of the State To Create a Trust

"[T]he General Assembly is free to enact any legisla-

tion that the constitution does not expressly prohibit." Maddux

v. Blagojevich, 233 Ill. 2d 508, 522, 911 N.E.2d 979, 988 (2009);

see also Locust Grove Cemetery Ass'n v. Rose, 16 Ill. 2d 132,

138, 156 N.E.2d 577, 580 (1959) ("Every subject within the scope

of civil government which is not within some constitutional

inhibition may be acted upon by the General Assembly"). I am

aware of no constitutional provision expressly prohibiting the

General Assembly from enacting legislation making the State of

Illinois the settlor of a trust. I do not doubt that the General

Assembly has the power to grant property outright, such as by

awarding grants out of public funds. It follows that the General

- 21 - Assembly also has the power to transfer public funds in trust.

"A person has capacity to create a trust by transferring property

inter vivos in trust to the extent that he has capacity to

transfer the property inter vivos free of trust." Restatement

(Second) of Trusts §19, at 64 (1959).

Several treatises on the law of trusts recognize that a

state can be a trustee. (They also add that sovereign immunity

might prevent a beneficiary from enforcing the trust. Sovereign

immunity does not prevent us, however, from assessing the consti-

tutionality of a statute.) 2 A. Scott, M. Ascher & W. Fratcher,

Scott & Ascher on Trusts §11.1.5, at 607-08 (5th ed. 2006); G.

Bogert & G. Bogert, Trusts & Trustees §128, at 393 (1984);

Restatement (Second) of Trusts §95, at 221-22 (1959). If, in the

view of these authorities, a state can take property in trust, a

state can transfer property in trust to one of its agencies. I

conclude that the General Assembly has the inherent power to make

the State of Illinois the settlor of a trust and to appoint a

state agency as the trustee.

2. Requirements for the Creation of an Express Trust The supreme court has held there are six requirements

for the creation of an express trust:

"(1) [the] intent of the parties to create a

trust, which may be shown by a declaration of

trust by the settlor or by circumstances

which show that the settlor intended to cre-

ate a trust; (2) a definite subject matter or

- 22 - trust property; (3) ascertainable beneficia-

ries; (4) a trustee; (5) specifications of a

trust purpose and how the trust is to be

performed; and (6) delivery of the trust

property to the trustee." Eychaner v. Gross,

202 Ill. 2d 228, 253, 779 N.E.2d 1115, 1131

(2002).

I find the fulfillment of each of those requirements in this

case.

a. A Declaration of Trust by the Settlor

In section 6 of the State Finance Act (625 ILCS 35/6

(West 2004)), the General Assembly makes "a declaration of

trust." Eychaner, 202 Ill. 2d at 253, 779 N.E.2d at 1131. To

finance a training program for motorcycle riders, the General

Assembly requires the Secretary of State to "deposit with the

State Treasurer an amount equal to each annual fee and ***

reduced fee[] for the registration of each motorcycle, motor

driven cycle[,] and motorized pedalcycle processed by the Office

of the Secretary of State during the preceding quarter ***, which

amount the State Comptroller shall transfer quarterly to a trust fund outside of the State treasury[,] to be known as the [']Cycle

Rider Safety Training Fund,['] which is hereby created." (Empha-

sis added.) 625 ILCS 35/6 (West 2004).

The mere use of the word "trust" does not establish the

existence of an express trust. La Throp v. Bell Federal Savings

& Loan Ass'n, 68 Ill. 2d 375, 381, 370 N.E.2d 188, 191 (1977).

- 23 - (Again, six requirements must be met. Eychaner, 202 Ill. 2d at

253, 779 N.E.2d at 1131.) Nevertheless, I consider the legisla-

ture's use of the term "trust fund" to be compelling evidence

that it intended to create a trust. See Oglesby v. Springfield

Marine Bank, 395 Ill. 37, 49, 69 N.E.2d 269, 276 (1946) ("Ordi-

narily, where an express private trust is relied on, the instru-

ments introduced in evidence to establish such trust contain

words such as 'in trust'"). I must assume the legislature did

not use that term lightly or in ignorance.

b. Definite Subject Matter or Trust Property

The subject matter of the trust is definite: the

amounts deposited in the trust fund. These amounts are to be

"equal to each annual fee and *** reduced fee[] for the registra-

tion of each motorcycle, motor driven cycle[,] and motorized

pedalcycle." 625 ILCS 35/6 (West 2004).

c. Ascertainable Beneficiaries

The beneficiaries are ascertainable: "all residents of

the State who hold a currently valid driver's license and who

have reached their 16th birthday." 625 ILCS 35/4 (West 2004).

These are beneficiaries "'capable of taking, and so defined and

pointed out, that the trust will not be void for uncertainty.'"

Kingsley v. Montrose Cemetery Co., 304 Ill. App. 273, 284, 26 N.E.2d 613, 618 (1940), quoting Gallego's Executors v. Attorney

General, 30 Va. 450, 466 (1832). "It is not essential to the

validity of a deed of trust that the beneficiaries should appear

therein by name. It will be sufficient if they are so described

- 24 - or designated that they may be ascertained and distinguished."

First National Bank of Elgin v. Schween, 127 Ill. 573, 580, 20

N.E. 681, 685 (1889). I am aware of no authority forbidding the

establishment of a trust with numerous beneficiaries. The

beneficiaries in this case, though numerous, are definite and

ascertainable.

d. A Trustee

The Department of Transportation is the trustee of the

trust fund. The Act does not call the Department the "trustee,"

but the use or nonuse of that word is not controlling. See La Throp, 68 Ill. 2d at 381, 370 N.E.2d at 191; Restatement (Second)

of Trusts §24(2), at 67 (1959). Through its description of the

Department's powers and duties with respect to the trust fund,

the Act appoints the Department as trustee.

The Department has "the power, duty[,] and authority to

administer [the] Act" (625 ILCS 35/3 (West 2004)), and adminis-

tering the Act ultimately comes down to deciding specifically how

the trust fund will be spent (consistently with the provisions

setting forth the purpose of the trust and the manner of perfor-

mance). The Department may promulgate rules and regulations for

the administration of the Act. 625 ILCS 35/5 (West 2004). The

Department shall designate the state colleges, community col-

leges, state universities, and community agencies that may

organize "Training Centers," in which "cycle rider safety train-

ing courses" will be taught. 625 ILCS 35/4 (West 2004). "The

Department is authorized to and shall award contracts out of

- 25 - appropriations to the Department from 'The Cycle Rider Safety

Training Fund' to qualifying Regional Cycle Rider Safety Training

Centers for the conduct of approved Cycle Rider Safety Training

courses." 625 ILCS 35/7 (West 2004). By rule and regulation,

the Department shall prescribe the curriculum and accreditation

for these courses, along with the qualifications and certifica-

tion requirements for the instructors. 625 ILCS 35/4 (West

2004). The Department shall accept moneys for deposit into the

trust fund, which it shall use "for the expenses of the Depart-

ment in administering the provisions of [the] Act, for funding of

contracts with approved Regional Cycle Rider Safety Training

Centers for the conduct of courses, or for any purpose related or

incident thereto and connected therewith." 625 ILCS 35/6 (West

2004). These are just the sort of tasks one would expect a

trustee to perform in administering the trust fund.

e. Specification of the Trust Purposes and How the Trust Is To Be Performed

i. The Trust Purpose

The trust purpose is to provide "courses of instruction

in the use and operation of cycles, including instruction in the

safe on-road operation of cycles, the rules of the road[,] and

the laws of this State relating to motor vehicles." 625 ILCS

35/2.03 (West 2004). These courses are open to all Illinois

residents 16 years of age or older who possess a valid driver's

license. 625 ILCS 35/4 (West 2004).

ii. How the Trust Is To Be Performed

By describing the trustee's powers and duties, the Act

- 26 - describes how the trust is to be performed. Generally, the

manner of performance is as follows. The Department will approve

the organization of regional training centers, which will offer

courses on motorcycle safety. 625 ILCS 35/4 (West 2004). The

Department will enter into contracts with these training centers

and, by disbursements from the trust fund, pay for their services

to trainees. 625 ILCS 35/7 (West 2004). By publishing rules and

regulations, the Department will fill in certain details, such as

the curriculum and accreditation for the courses and the qualifi-

cations and certification of instructors. 625 ILCS 35/4 (West

2004). A trust instrument need not specify all the details of

administration, so long as it describes, in general terms, the

manner in which the trust is to be performed. In re Estate of

Zukerman, 218 Ill. App. 3d 325, 330, 578 N.E.2d 248, 252 (1991).

f. Delivery of the Trust Property to the Trustee

The State has delivered trust property to the Depart-

ment, as trustee, by depositing amounts in the trust fund.

B. A Taking

"Private property shall not be taken *** for public use

without just compensation as provided by law." Ill. Const. 1970,

art. I, §15. The budget implementation plans violate the takings

clause insomuch as they transfer amounts from the trust fund to

the General Revenue Fund, for, in so doing, they take what does

not belong to the State of Illinois: the beneficial interest in

the trust fund.

Plaintiffs characterize the corpus of the trust as

- 27 - "private funds," and defendants characterize it as "public

funds." Neither term is apt. Whenever the Comptroller deposits

an amount of money into the trust fund, the ownership of that

money divides in two: the Department of Transportation, as

trustee, receives the legal title, and the beneficiaries receive

the equitable estate. See Randolph v. Wilkinson, 294 Ill. 508,

515, 128 N.E. 525, 529 (1920); 35 Ill. L. & Prac. Trusts §59, at

111 (2001). The equitable estate is property (Merchants' Loan &

Trust Co. v. Patterson, 308 Ill. 519, 530, 139 N.E. 912, 916

(1923)), and the State cannot take it any more than it could take

the car parked in someone's driveway.

The trust fund in this case is an educational trust

fund, and, essentially, it is no different from the educational

trust fund an uncle might establish for a nephew, with himself as

trustee. If he and his nephew have a falling out, he cannot

remove the money from the trust account and put it back in his

private account. That would be conversion (or, in the State's

case, an uncompensated taking). He can stop depositing money

into the trust account (just as the General Assembly, if it

wished, could repeal the provision in section 6 (625 ILCS 35/6

(West 2004)) whereby registration fees are deposited every

quarter into the trust fund). But once he deposits a sum into

the trust account, he loses the equitable title to it and retains

only the legal title.

- 28 -