Illinois Road & Transportation Builders Ass'n v. County of Cook

2021 IL App (1st) 190396

Opinion

2021 IL App (1st) 190396

THIRD DIVISION March 3, 2021

No. 1-19-0396

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

ILLINOIS ROAD AND TRANSPORTATION ) Appeal from the Circuit Court of BUILDERS ASSOCIATION, FEDERATION OF ) Cook County. WOMEN CONTRACTORS, 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, ) No. 18 CH 2992 UNDERGROUND CONTRACTORS ASSOCIATION ) OF ILLINOIS, and ILLINOIS CONCRETE PIPE ) Honorable Peter Flynn, ASSOCIATION, ) Judge Presiding ) Plaintiffs-Appellants, ) ) v. ) ) THE COUNTY OF COOK, a Body Politic and ) Corporate, ) ) Defendant-Appellee. )

JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Burke concurred in the judgment and opinion.

OPINION 1-19-0396

¶1 In November 2016, Illinois voters approved an amendment to the Illinois Constitution,

adding to the revenue article a new section 11, titled “Transportation Funds” (the Amendment).

Roughly sketched, the Amendment requires that funds collected from transportation-related

taxes and fees be spent only for transportation purposes.

¶2 Plaintiffs, an amalgamation of trade groups and associations that represent a variety of

sectors in the transportation planning and construction industry, sued the County of Cook

(County), claiming the County violated the Amendment by diverting tax revenues protected by

the Amendment to non-transportation uses. Plaintiffs identified six different taxes the County

imposed related to transportation, all of whose revenues, they say, should have been sequestered

and used only for transportation-related purposes. Instead, those moneys were placed into the

County’s Public Safety Fund for non-transportation purposes to fund the county courts, jails, the

sheriff’s office, and like items.

¶3 The trial court dismissed the complaint, finding that plaintiffs lacked standing to sue and

that, in any event, the complaint failed to state a violation of the Amendment.

¶4 We disagree as to standing. Plaintiffs have standing to challenge the County’s alleged

violation of the Amendment. But we agree, albeit for different reasons, that the complaint fails to

state a constitutional violation. We thus affirm the trial court’s judgment.

¶5 BACKGROUND

¶6 In the November 2016 general election, voters across Illinois were presented with an

initiative to amend the Illinois Constitution to protect funds generated from transportation-related

taxes from being spent for any purposes other than transportation-related ones. Passage of the

Amendment required approval of either three-fifths of those voting on the question or a majority

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of those voting in the election. See Ill. Const. 1970, art. XIV, § 2(b). The Amendment easily

cleared that hurdle, garnering the support of nearly 80% of those who voted on the question.

¶7 On March 6, 2018, plaintiffs—a group of business and trade associations—filed this suit

for declaratory and injunctive relief against the County. The complaint alleged that, “to plug gaps

in its budget,” the County was diverting “revenue from transportation-related taxes and fees to

the County’s Public Safety Fund,” where it was then spent on non-transportation-related

purposes in violation of the Amendment. Plaintiffs identified the following sources of revenue

that were unconstitutionally diverted from transportation uses:

(1) the Cook County Home Rule County Use Tax Ordinance (see Cook County

Code of Ordinances § 74-270 et seq. (adopted Feb. 16, 2011);

(2) the Cook County Retail Sale of Gasoline and Diesel Fuel Tax Ordinance (see

id.§ 74-470 et seq.);

(3) the Cook County New Motor Vehicle and Trailer Excise Tax Ordinance (see

id. § 74-230 et seq.);

(4) the Cook County Home Rule Use Tax Ordinance for Non-Retailer Transfers

of Motor Vehicles (see id. § 74-595 et seq. (adopted Nov. 15, 2011));

(5) the Cook County Wheel Tax on Vehicles Ordinance (see id. § 74-550 et seq.

(adopted May 21, 2020)); and

(6) the Cook County Parking Lot and Garage Operations Tax Ordinance (see id.

§ 74-510 et seq. (adopted July 17, 2013)).

¶8 For ease of references, we will refer to these taxes listed above, collectively, as the “Cook

County Transportation Taxes.”

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¶9 The complaint alleged that, despite the fact that each of these taxes was a “transportation-

related tax within the meaning of [the Amendment],” the County was “deposit[ing] all revenue”

from the taxes listed above “in the County’s Public Safety Fund.”

¶ 10 The Public Safety Fund, according to the complaint, funds operations of the County’s

criminal justice system, including the sheriff’s office, the state’s attorney, the department of

corrections, and the clerk of the circuit court. The complaint alleges that “[t]he Public Safety

Fund is not a transportation-related purpose within the meaning of Article IX, Sections 11(b) or

(c) of the Illinois Constitution.”

¶ 11 The County moved to dismiss the complaint, both for failure to state a claim and on

standing and justiciability grounds. The trial court agreed with the County on both points, finding

that plaintiffs lacked standing and that the complaint did not state a constitutional violation. The

court thus dismissed the complaint. This appeal followed.

¶ 12 ANALYSIS

¶ 13 I

¶ 14 A

¶ 15 Our first question is whether plaintiffs have standing to challenge the County’s alleged

constitutional violation. A dismissal based on lack of standing is entered pursuant to section 2-

619(a)(9) of the Code of Civil Procedure. See 735 ILCS 5/2-619(a)(9) (West 2018); Glisson v.

City of Marion, 188 Ill. 2d 211, 220 (1999).

¶ 16 A complaint need not allege facts establishing standing. International Union of Operating

Engineers, Local 148 v. Illinois Department of Employment Security, 215 Ill. 2d 37, 45 (2005).

In Illinois, lack of standing is an affirmative defense, placing the burden on the defendant to

“plead and prove lack of standing.” Id. Thus, when “standing is challenged by way of a motion

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to dismiss,” the usual principles applicable to section 2-619 motions govern: “[A] court must

accept as true all well-pleaded facts in the plaintiff’s complaint and all inferences that can

reasonably be drawn in the plaintiff’s favor.” Id. Appellate review is de novo. Id.

¶ 17 The standing doctrine assures that parties have a sufficient stake in the outcome of the

controversy. Scachitti v. UBS Financial Services, 215 Ill. 2d 484, 493 (2005). But “it should not

be an obstacle to the litigation of a valid claim.” People v. $1,124,905 U.S. Currency & One

1988 Chevrolet Astro Van, 177 Ill. 2d 314, 330 (1997). The plaintiff’s claimed injury must be

“(1) distinct and palpable; (2) fairly traceable to defendant’s actions; and (3) substantially likely

to be prevented or redressed by the grant of the requested relief.” Wexler v. Wirtz Corp., 211 Ill.

2d 18, 23 (2004).

¶ 18 Plaintiffs allege two forms of standing. The first is associational standing, as plaintiffs are

all nonprofit trade associations representing various aspects of the construction industry.

¶ 19 Associational standing refers to the ability of an association to sue as a representative

body on behalf of its members. The doctrine “is firmly established in federal law” and was first

adopted in Illinois in International Union, 215 Ill. 2d at 48. Our supreme court expressly adopted

the test for associational standing from the United States Supreme Court in Hunt v. Washington

State Apple Advertising Comm’n, 432 U.S. 333 (1977). See International Union, 215 Ill. 2d at

51-52.

¶ 20 In Hunt, 432 U.S. at 343, the Supreme Court articulated a three-part test to determine if

an association has standing to sue on behalf of its constituent members. An association will have

standing to sue on behalf of its members when “(a) its members would otherwise have standing

to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s

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purpose; and (c) neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit.” Id.

¶ 21 The County does not dispute that plaintiffs satisfy Hunt’s second and third requirements.

We thus confine our analysis to a single question: whether the association plaintiffs have alleged

“ ‘that [their] members, or any one of them, are suffering immediate or threatened injury as a

result of the challenged action.’ ” International Union, 215 Ill. 2d at 46 (quoting Warth v. Seldin,

422 U.S. 490, 511 (1975)).

¶ 22 Which means that we return full circle to general standing principles. That is to say, have

the members of plaintiffs’ organizations suffered an injury that is “(1) distinct and palpable;

(2) fairly traceable to defendant’s actions; and (3) substantially likely to be prevented or

redressed by the grant of the requested relief?” Wexler, 211 Ill. 2d at 23. And given the burden of

proof on this affirmative defense, the real question is, has the County established that plaintiffs

have not suffered such an injury?

¶ 23 We will briefly examine each of the plaintiff associations and their claim of injury

suffered by their individual members.

¶ 24 Plaintiff Illinois Road and Transportation Builders Association (IRTBA) is a trade

association consisting of “more than 350 member firms who design, build, and maintain Illinois’

highways, transit systems, railways, and aviation systems.” “Many” of its members “are based in

Cook County and contract with the County to perform construction work on transportation-

related project within the County.”

¶ 25 Plaintiff Federation of Women Contractors (FWC) “consists of more than one hundred

women and women owned firms working in the construction industry, including general and

specialty contractors, subcontractors, architecture and engineering firms, and suppliers

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representing every facet and component of construction,” the “majority” of which “are based in

Cook County.”

¶ 26 Plaintiff Illinois Association of Aggregate Producers (IAAP) is a not-for-profit trade

association that represents “every sector of Illinois’ non-coal aggregate mining industry.” IAAP

members are responsible for producing “more than 90 percent of Illinois’ aggregate and

industrial minerals at more than two hundred plants and facilities in seventy counties throughout

Illinois, including Cook County.” “Most of the aggregate material produced by IAAP members

is utilized in road construction, including crushed aggregate in concrete and asphalt pavements

and drainage bases under roads, sewers, parking lots, and sidewalks.”

¶ 27 Plaintiff Associated General Contractors of Illinois (AGCI) “is one of the largest heavy-

highway construction trade associations in Illinois.” AGCI “represents highway, heavy, and

utility contractors” and “has more than one hundred active, associate, and affiliate members,

including members that are based in Cook County and that conduct business with Cook County.”

¶ 28 Plaintiff Illinois Asphalt Pavement Association (IAPA) is a trade association with “nearly

two hundred members, including sixteen members that produce or supply hot mix asphalt within

Cook County and approximately ninety members that supply material, equipment, or services

directly to Cook County or to the IAPA’s plant mix members working in Cook County.”

¶ 29 Plaintiff Illinois Ready Mixed Concrete Association (IRMCA) is a trade association

representing “nearly 150” companies, including “multiple firms that supply concrete in Cook

County.”

¶ 30 Plaintiff Great Lakes Construction Association (GLCA) “represents more than two

hundred member firms in twenty-seven work categories in the construction industry,” “including

approximately one hundred members who are based in Cook County.”

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¶ 31 Plaintiff American Council of Engineering Companies, Illinois Chapter (ACEC), is a

“Statewide association dedicated solely to the interests of Illinois consulting engineering firms.”

¶ 32 Plaintiff Chicagoland Associated General Contractors (AGC) is an association of general

contractors whose membership includes “more than eighty” firms based in Cook County.

¶ 33 Plaintiff Underground Contractors Association of Illinois (UCA) is a not-for-profit trade

association that “represents more than two hundred contractors and associate member companies

in the sewer, water, utility, and underground industries throughout Illinois, including in Cook

County.”

¶ 34 Plaintiff Illinois Concrete Pipe Association (ICPA) is a not-for-profit trade association

composed of “concrete pipe producers and affiliated companies serving the Illinois sewer and

culvert market, including members based in Cook County.”

¶ 35 As to each one of these association plaintiffs, the complaint alleges that its members “are

suffering economic harm due to the County’s ongoing violations of [the Amendment]”—more

specifically, the County’s diversion of money that allegedly must be spent for transportation-

related purposes but, instead, is being transferred into the County’s Public Safety Fund.

¶ 36 The injury the plaintiff members allege is not some “ ‘generalized grievance common to

all members of the public.’ ” Alliance for the Great Lakes v. Department of Natural Resources,

2020 IL App (1st) 182587, ¶ 32 (quoting Greer v. Illinois Housing Development Authority, 122

Ill. 2d 462, 494 (1988)). Their injury is “distinct and palpable.” Wexler, 211 Ill. 2d at 23. They

are alleging the loss of business opportunity by virtue of a diminution in the number of projects

put out to bid in Cook County. Economic harm has long been considered a sufficient injury to

confer standing. See Greer, 122 Ill. 2d at 493; International Union, 215 Ill. 2d at 51 (denial of

unemployment benefits was sufficient injury to confer standing on individual union members).

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¶ 37 The remaining, interrelated two prongs, whether the members’ injuries are “fairly

traceable” to the County’s allegedly unconstitutional conduct, and whether a ruling in their favor

is “substantially likely” to redress their injuries (Wexler, 211 Ill. 2d at 23), is where the parties do

battle. We say they are interrelated because the case law, as we will see, sometimes considers

them in tandem, and for good reason. Sometimes, perhaps often, the same causal link that

connects the defendant’s misconduct to the plaintiff’s injury works likewise in reverse, such that

judicial elimination of that misconduct would heal that injury.

¶ 38 Much of the County’s argument against standing, in fact, interweaves the traceability and

judicial-redress prongs in a manner that we could summarize in one word—speculation.

Plaintiffs can only speculate that, had the transportation money not been diverted, the County

would have implemented public transportation projects; they can only speculate that, even if the

County had announced such projects, any one of their members would have been awarded the

work; they can only speculate that, if they win this lawsuit and force the County to spend all this

recovered and future money on transportation projects, they will be awarded any of that work.

¶ 39 Plaintiffs’ response is that the County is weaponizing its unconstitutional behavior to

insulate itself from judicial review: divert transportation funds, thereby fail to fund new

transportation projects, and then claim that the firms that would have been eligible to bid on this

work lack standing because … they can’t point to any projects they lost out on. Under that

circular theory, say plaintiffs, nobody could ever challenge the County’s alleged unconstitutional

diversion of funds. And if anyone would be motivated to force the County to comply with the

constitution and sequester transportation tax revenue for transportation purposes, who more so

than the firms that would financially profit from the resulting transportation projects?

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¶ 40 We agree with plaintiffs’ view of standing. To be sure, standing cannot be founded on a

“highly attenuated chain of possibilities.” Clapper v. Amnesty International USA, 568 U.S. 398,

410 (2013). But neither is certainty required. Particularly when the injury to a plaintiff is the loss

of opportunity to obtain a benefit due to the government’s failure to perform a required act—

here, sequestering transportation funds—it is rarely possible to know with any confidence what

might have happened, had the government performed that act, much less what precisely will

happen in the future if the improper conduct is corrected. If such certainty were required, the

doctrine of standing would substantially reduce, if not altogether eliminate, entire categories of

lawsuits. And, as we explain below, that is not how we read the case law.

¶ 41 For example, in West Virginia Ass’n of Community Health Centers, Inc. v. Heckler, 734

F.2d 1570, 1572-73 (D.C. Cir. 1984), the plaintiffs—a hospital association and one of its

members—sued the federal government, alleging that its formula for awarding block grants to

states under a federal statute “unlawfully deprived the State of West Virginia of monies to which

it was entitled,” to the tune of nearly $300,000. The governmental defendant claimed the

plaintiffs lacked standing, as they “failed to demonstrate that a judicial decision mandating an

increase in West Virginia’s [block grant] funding would redound to their benefit.” Id. at 1574.

The court flatly rejected that argument, holding that “once appellants demonstrated that they

would qualify to receive these funds, they need not shoulder the additional burden of

demonstrating that they are certain to receive funding.” (Emphases added.) Id. at 1576.

¶ 42 Likewise, in National Ass’n of Neighborhood Health Centers, Inc. v. Mathews, 551 F.2d

321, 324 (D.C. Cir. 1976), the plaintiff, a national organization of community health centers,

sued to force the Department of Health, Education and Welfare (HEW) to recover money that the

department allegedly spent in violation of a federal statute. On appeal, HEW argued that the

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plaintiff lacked standing to challenge the allegedly illegal transfers because the plaintiff did not

allege “ ‘that [the] illegal transfer of funds affected any of its members.’ ” Id. at 329. The court

rejected that argument:

“The less that is recovered in the four disputed states, the less will be available to the

present applicants, including the [plaintiff] members; these members are directly hurt by

*** the sharp curtailment of their opportunities for funding. *** While it is not certain

that [the plaintiff] members would be funded due to the extra recovery from their claim

here, it is probable that the prospect of funding, itself substantial relief, would be

enhanced.” (Emphases added.) Id.

¶ 43 The probability that judicial relief would result in an economic benefit was likewise

sufficient to support standing in American Iron & Steel Institute v. Occupational Safety & Health

Administration, 182 F.3d 1261 (11th Cir. 1999). There, the American College of Occupational

and Environmental Medicine (hereinafter, Doctors) challenged a regulation promulgated by the

defendant, the Occupational Safety and Health Administration (OSHA), that enabled non-

physician health-care providers to perform federally mandated medical evaluation services that,

prior to the enactment of the regulation, could only be performed by physicians. Id. at 1266-67.

The court held that the Doctors had standing, reasoning that the Doctors suffered an economic

injury due to the “loss of patients and income[ ] inflicted by the lack of a requirement that

medical evaluations be performed only by physicians” and reasoned that “this injury is

redressable through judicial review” of the regulation. Id. at 1274 n.10.

¶ 44 Finally, plaintiffs cite United States Women’s Chamber of Commerce v. United States

Small Business Administration, No. 1:04-CV-01889, 2005 WL 3244182 (D.D.C. Nov. 30, 2005).

At issue there was a federal law that established a preferential procurement program for women-

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owned small businesses (WOSBs). Id. at * 1. But first, the Small Business Administration (SBA)

was required to conduct a study to identify industries in which WOSBs were underrepresented

and then, armed with that information, to propose procedures to implement the program. Id. at

* 2.

¶ 45 But for four years, the SBA had failed to conduct that study or propose implementation

procedures, thus stalling the program’s launch. The associational plaintiff, representing WOSBs,

sued to compel the SBA to implement the study and issue proposed procedures. The government

claimed the plaintiff lacked associational standing. First, said the government, the plaintiff

members’ injuries could not be fairly traced to the SBA’s conduct, because plaintiff could not

identify a single member in its association that failed to obtain a government contract because of

the lack of the WOSB procurement program. Id. at * 8.

¶ 46 The district rejected that argument. To satisfy the traceability prong, the court wrote, the

plaintiff need only show that “ ‘it reasonably could be inferred that’ had the defendants

conducted the study and adopted the procedures called for by the [federal law] ‘there is a

substantial probability’ that one of its members would have benefitted.” Id. (quoting Warth, 422

U.S. at 504).

¶ 47 The government also claimed the plaintiff members could not show that judicial redress

would benefit them, that none of the plaintiff members could show they belonged to an industry

eligible for the WOSB preference—because the SBA hadn’t yet identified which industries were

program-eligible. Id. The district rejected this “circular reasoning” and agreed with the plaintiff

that the government’s argument “ ‘imposes a “catch-22”: illegally refusing to implement the

mandates of the Act, while claiming that its refusal to implement the Act insulates its actions

from review.’ ” Id.

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¶ 48 We are persuaded by these federal decisions, cognizant that the very doctrine of

associational standing comes from the (obviously federal) United States Supreme Court decision

in Hunt, 432 U.S. 333. See International Union, 215 Ill. 2d at 51-52. Indeed, “to the extent that

the State law of standing varies from Federal law, it tends to vary in the direction of greater

liberality; State courts are generally more willing than Federal courts to recognize standing on

the part of any plaintiff who shows that he is in fact aggrieved by an administrative decision.”

Greer, 122 Ill. 2d at 491; see Alliance for the Great Lakes, 2020 IL App (1st) 182587, ¶ 32 (“our

supreme court has recognized that Illinois standing law is more liberal than federal law”).

¶ 49 In any event, we agree with these decisions that, when association members can

demonstrate an opportunity for financial benefits or contracts, the opportunity for which was

denied due to the government’s improper conduct, and the opportunity for which would be

restored if they prevail in this lawsuit, those members have standing.

¶ 50 Here, then, the member plaintiffs’ injuries are fairly traceable to the County’s conduct in

that they were denied the chance to bid on construction projects that inevitably would have

come, and would continue to come in the future, if the County followed its (alleged)

constitutional mandate and kept transportation dollars in a pot dedicated only for transportation.

Likewise, this injury is capable of redress through judicial relief; if plaintiffs prevail in this

lawsuit, the County will be required to claw back transportation tax dollars improperly diverted

and will be prevented from diverting them going forward. That means a large pot of tax revenue

that can only be spent for one purpose—transportation. It is more than substantially probable—it

is a near certainty that the County (or for that matter, any government unit), given that money

with only one purpose for it, would spend it for that purpose, all to the benefit of the members of

the plaintiff associations.

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¶ 51 Under these circumstances, it would defy logic and fundamental fairness to deny

plaintiffs standing simply because they cannot demonstrate with certainty that they would have

received in the past, or will receive in the future, a particular contract—particularly when the

reason they cannot demonstrate it is the very (alleged) misconduct of the government at issue in

the lawsuit. The opportunity to seek that benefit is more than enough to show that these plaintiffs

are litigants with skin in the game, with “ ‘such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination of difficult constitutional questions.’ ”

(Internal quotation marks omitted.) Kluk v. Lang, 125 Ill. 2d 306, 318 (1988) (quoting Flast v.

Cohen, 392 U.S. 83, 99 (1968)).

¶ 52 We are not moved by the County’s citation to I.C.S. Illinois, Inc. v. Waste Management

of Illinois, Inc., 403 Ill. App. 3d 211, 231 (2010), on which the circuit court relied to deny

standing to plaintiffs here; that case was decided under markedly different circumstances. That

lawsuit did not involve a suit for declaratory or injunctive relief against the government, seeking

to correct alleged government misconduct that denies financial opportunities to scores of private

companies. I.C.S. involved a class action brought by private firms against a private contractor,

sounding in tort and seeking lost profits for the failure to pick one of the plaintiffs for a sub-

contracting job. Those facts, alone, puts I.C.S. miles away from this case.

¶ 53 The two named plaintiffs in that purported class action were firms certified by the City of

Chicago as a minority business enterprise (MBE) or women-owned business enterprises (WBE)

who were thus eligible for procurement preferences with the city. Id. at 215. The defendant

contractor, Waste Management, procured a contract with the city and, instead of hiring a truly

certified MBE or WBE firm for a subcontractor, hired three firms who fraudulently claimed to be

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MBE/WBE contractors. Id. The plaintiffs did not and could not allege that the subcontracts were

let for competitive public bidding; that they would have secured those contracts, had they been

so bid; or that they were anything more than private contractors upset that a private firm gave the

contract to someone else, while violating city ordinances governing MBE/WBE preferences.

¶ 54 We affirmed the dismissal of the complaint for lack of standing. We held as follows: “a

subcontractor has no standing to challenge the award of a contract to a competitor after a bidding

process has been completed unless it can show that it would have won the contract but for the

defendant’s fraud. In the absence of such an allegation, a subcontractor does not suffer an injury

to a legally cognizable interest that is distinct and palpable.” Id. at 231.

¶ 55 I.C.S. thus addresses an entirely different situation, concerning a private companies’ suit

against another private company for monetary damages over a single lost job. The court analyzed

numerous “disappointed bidder” cases in reaching its conclusion (see id. at 221-31), but ours is

not a case involving a disappointed bidder seeking a single contract or damages for lost profits.

Ours is an action seeking to declare government conduct unconstitutional and to enjoin that

conduct in the future. The concept of “lost opportunities to bid” is relevant to standing in a

materially different way here than it is in a tort action over a single construction job.

¶ 56 We thus hold that plaintiffs have established associational standing. As such, we need not

consider the alternative claim of taxpayer standing.

¶ 57 B

¶ 58 The circuit court also reasoned that there were justiciability problems with this lawsuit,

that deciding this case would embroil the judiciary in policy choices over spending decisions and

require judges to decide things better left to legislators. We see no such problem.

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¶ 59 We are not being asked to construe constitutional language so ambiguous and ill-suited to

judicial determination as what it means for the State to provide for “ ‘an efficient system of high

quality public educational institutions and services.’ ” (Emphasis omitted.) Committee for

Educational Rights v. Edgar, 174 Ill. 2d 1, 10 (1996) (quoting Ill. Const. 1970, art. X, § 1). That

was particularly inappropriate given that, as our supreme court noted, a review of the

constitutional convention debates revealed that “the framers of the 1970 Constitution did not

intend to formulate any specific definition of ‘high quality,’ nor did they anticipate that the

concept would be defined by the courts.” Id. at 27. The language of the Amendment before us is

complex, as we will see, but far from incapable of judicial determination.

¶ 60 In discussing its justiciability concerns, the circuit court also cited Glisson, which

involved constitutional language providing that “ ‘[e]ach person has the right to a healthful

environment.’ ” Glisson, 188 Ill. 2d at 224 (quoting Ill. Const. 1970, art. XI, § 2). The words in

the Amendment before us are not so vague, aspirational, and subject to policy-driven debate as

the definition of a “healthful environment.” And more to the point, the citation is inapt, in any

event. It is true that the supreme court affirmed the dismissal of the complaint in Glisson, but not

because it was non-justiciable; the court dismissed the complaint for lack of standing because the

plaintiff was trying to enforce the right to a “healthful environment” not on his own behalf, but

on behalf of two species of fish. Id. at 231.

¶ 61 As will be shown, interpreting the Amendment will be no simple chore. But courts

interpret difficult language all the time. In the end, this lawsuit makes one simple claim—the

Amendment requires the County to sequester all revenues generated from transportation-related

taxes and to spend that money only for transportation purposes. We must determine whether the

Amendment does or does not do that very thing. It requires no policy judgment, no fiscal

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decisions, no embroilment of the judiciary into the everyday affairs of the legislature or a unit of

local government. We must merely decide what the law is and enter judgment accordingly.

¶ 62 As we hold that plaintiffs have standing to challenge the County’s actions, and we see no

barriers to justiciability, we turn now to the merits.

¶ 63 II

¶ 64 The trial court dismissed the complaint for failing to state a claim under section 2-615 of

the Code of Civil Procedure. See 735 ILCS 5/2-615 (West 2018). We accept as true all well-

pleaded facts and draw all reasonable inferences in favor of the plaintiff. Doe v. Coe, 2019 IL

123521, ¶ 20. Our review is de novo. Id.

¶ 65 Our analysis requires a review of the Amendment. We apply the same principles to the

construction of a constitutional provision as we would a statute. Kanerva v. Weems, 2014 IL

115811, ¶ 36. Our goal is to determine “the common understanding of the citizens who adopted”

the Amendment. Id. We do so, first and foremost, by examining the Amendment’s language,

“the most certain route to determining the framers’ intent.” Hooker v. Illinois State Board of

Elections, 2016 IL 121077, ¶ 47. If the language is clear and unambiguous, our inquiry ends, and

we give the Amendment its intended effect without resort to extrinsic information. Id. ¶ 35.

¶ 66 The Amendment consists of six subsections. The first two subsections command the bulk

of the parties’ arguments and our analysis, so we start there:

“(a) No moneys, including bond proceeds, derived from taxes, fees, excises, or

license taxes relating to registration, title, or operation or use of vehicles, or related to the

use of highways, roads, streets, bridges, mass transit, intercity passenger rail, ports,

airports, or to fuels used for propelling vehicles, or derived from taxes, fees, excises, or

license taxes relating to any other transportation infrastructure or transportation

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operation, shall be expended for purposes other than as provided in subsections (b) and

(c).

(b) Transportation funds may be expended for the following: the costs of

administering laws related to vehicles and transportation, including statutory refunds and

adjustments provided in those laws; payment of highway obligations; costs for

construction, reconstruction, maintenance, repair, and betterment of highways, roads,

streets, bridges, mass transit, intercity passenger rail, ports, airports, or other forms of

transportation; and other statutory highway purposes. Transportation funds may also be

expended for the State or local share of highway funds to match federal aid highway

funds, and expenses of grade separation of highways and railroad crossings, including

protection of at-grade highways and railroad crossings, and, with respect to local

governments, other transportation purposes as authorized by law.” (Emphasis added.) Ill.

Const. 1970, art. IX, § 11(a), (b).

¶ 67 Subsection (c) provides a further description of the first category of funds described in

subsection (b), “the costs of administering laws related to vehicles and transportation.” Ill. Const.

1970, art. IX, § 11(c).

¶ 68 Subsection (d) prohibits the diversion of transportation funds “to any purpose other than

those described in subsections (b) and (c).” Ill. Const. 1970, art. IX, § 11(d). Subsection (e)

envisions future modes of transportation currently unknown and provides that “[i]f the General

Assembly appropriates funds for a mode of transportation not described in this Section, the

General Assembly must provide for a dedicated source of funding.” Ill. Const. 1970, art. IX,

§ 11(e). Subsection (f) exempts federal funds from the Amendment entirely. Ill. Const. 1970, art.

IX, § 11(f).

18 1-19-0396

¶ 69 The County argues that the Amendment “is only applicable to situations involving

governments’ use of transportation-related monies as specified by an applicable statute and is

thus inapplicable to the County under the circumstances of the instant case.” (Emphasis added.)

That is to say, because the Amendment only sequesters revenues whose expenditures are

governed by a statute, it does not sequester the revenues from the Cook County Transportation

Taxes at issue here, whose expenditures are authorized by home-rule power, not a state law.

¶ 70 Plaintiffs’ view is that the Amendment applies to the spending of any transportation-tax-

related revenues whatsoever within the State of Illinois, no matter the authority under which that

money is spent—statute or local ordinance.

¶ 71 Before we go any further, it would be prudent to outline the various ways that a unit of

local government may receive and spend tax revenues.

¶ 72 A

¶ 73 Federal funds aside, a home-rule unit may receive revenues in one of three ways:

(1) from State-imposed taxes; (2) from taxes that the General Assembly authorizes the unit of

local government to impose itself; or (3) in the specific case of home-rule units, from taxes the

home-rule unit generates under its independent constitutional authority to tax. See Ill. Const.

1970, art. VII, § 6(a) (home-rule units have power to tax).

¶ 74 As to the first category, when the State imposes a tax and distributes some of the

revenues to units of local government, a statute will typically specify how local governments

must spend that money. For example, the State imposes a motor fuel tax and distributes some of

that revenue to counties, municipalities, and road districts. See 35 ILCS 505/2, 5, 8 (West 2018).

A statute then dictates the purposes for which the relevant unit of local government may spend

that revenue. Counties, for example, must spend that motor fuel tax revenue for such purposes as

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construction and maintenance of county and State highways, subdivision roads, county garages,

grade separations and approaches, and bicycle markings and paths; paying principal and interest

on road bonds; and allotting funds for retiring certain construction-related debt, bonds for

superhighways, local mass-transit districts, and the like. See generally 605 ILCS 5/5-701 to 5-

701.16 (West 2018).

¶ 75 As to the second category, the General Assembly may grant a unit of local government

the power to tax an item or transaction that the unit of local government would not otherwise

have the power to tax. For non-home rule units, that means every tax, as non-home-rule units

lack any constitutional authority to tax and only have that taxing power granted them by statute.

See Ill. Const. 1970, art. VII, § 7 (“[c]ounties and municipalities which are not home rule units

shall have only powers granted to them by law,” with exceptions not relevant here). And even

home-rule units have limits on their constitutional taxing authority; for example, they may not

tax income or occupations unless the General Assembly provides them that power by statute. See

Ill. Const. 1970, art. VII, § 6(e). (Or, of course, the home-rule unit may have the independent

authority to tax, but the General Assembly preempts that power and imposes its statutory will.

See Ill. Const. 1970, art. VII, § 6(g).)

¶ 76 When the General Assembly provides a unit of local government statutory authority to

impose a tax, the legislature may, if it chooses, likewise dictate the purposes for which that tax

revenue is spent. For example, non-home-rule municipalities may impose a retailers’ occupation

tax, but they must spend that tax revenue on “public infrastructure” or “property tax relief” (with

one caveat allowing some of them to spend it for general “municipal operations” until the year

2030). See Pub. Act 101-47, § 5 (eff. Jan. 1, 2020) (amending 65 ILCS 5/8-11-1.3). And because

the General Assembly always retains the constitutional authority to preempt home-rule powers,

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nothing would stop the General Assembly from enacting a statute that authorized a home-rule

unit to impose a tax and mandating how that tax revenue could be spent.

¶ 77 But that’s up to the General Assembly, which could also choose to authorize a home-rule

tax but remain silent on how the home-rule unit spends that tax revenue. For example, the

General Assembly allows home-rule municipalities to impose a retailers’ occupation tax, but that

statutory grant of authority contains no mandate on how the home-rule unit may spend that

money. See 65 ILCS 5/8-11-1 (West 2018). When a home-rule unit is not mandated by statute to

spend tax revenue a certain way, it may spend the revenue as it pleases, under its general home-

rule power. See Allen v. County of Cook, 65 Ill. 2d 281, 288 (1976) (“the manner in which the

defendant county appropriates funds *** is a matter ‘pertaining to its government and affairs’ ”

within county’s home rule powers (quoting Ill. Const. 1970, art. VII, § 6(a))).

¶ 78 The third category of revenues, as mentioned, are revenues specific to a home-rule unit—

revenue from taxes a home-rule unit imposes by virtue of its independent constitutional authority

to tax. Ill. Const. 1970, art. VII, § 6(a). That is, the home-rule unit does not look to a statute for

taxing authorization. Typically, in this situation, the home-rule unit does not look to a statute for

spending authorization, either; it spends that tax revenue under its general home-rule power to do

so. See Allen, 65 Ill. 2d at 288. (Theoretically, of course, a statute could mandate a home-rule

unit’s spending of its home-rule-generated tax revenue without tinkering with its taxing

authority. Plaintiffs claim that happened recently; more on that later.)

¶ 79 To summarize, and putting aside federal funds, as they are not relevant here, a home-rule

unit like Cook County may receive revenue from one of three sources: (1) revenues from taxes

imposed by the State, which are distributed to units of local government, the spending of which

is typically dictated by statute; (2) revenues from taxes the home-rule unit, itself, imposes, but by

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virtue of statutory authorization, that may or may not contain a statutory mandate on how that tax

revenue may be spent; and (3) revenues from taxes imposed by the home-rule unit by its own

constitutional taxing authority, not a statute, which typically does not involve any statutory

mandate on how that tax revenue may be spent, either.

¶ 80 With that in mind, we turn to the substance of the parties’ arguments about the meaning

of the Amendment.

¶ 81 B

¶ 82 Plaintiffs’ position, again, is that Amendment applies to revenue generated from any

transportation-related tax imposed by any government within Illinois, be it the State or a unit of

local government like Cook County, regardless of whether a statute or a local home-rule

ordinance governs the spending of that tax revenue. In other words, plaintiffs argue that the

Amendment covers all three of the revenue sources that we have mentioned immediately above,

insofar as those revenues come from transportation-related taxes.

¶ 83 The County, on the other hand, argues that the Amendment applies only to the spending

of transportation-related tax revenue that is controlled by a statute—which, they say, excludes

the six Cook County Transportation Taxes at issue here.

¶ 84 A reading of subsection (a) of the Amendment, alone, would support plaintiffs’

argument. Again, subsection (a) provides:

“(a) No moneys, including bond proceeds, derived from taxes, fees, excises, or

license taxes relating to registration, title, or operation or use of vehicles, or related to the

use of highways, roads, streets, bridges, mass transit, intercity passenger rail, ports,

airports, or to fuels used for propelling vehicles, or derived from taxes, fees, excises, or

license taxes relating to any other transportation infrastructure or transportation

22 1-19-0396

operation, shall be expended for purposes other than as provided in subsections (b) and

(c).” Ill. Const. 1970, art. IX, § 11(a).

¶ 85 That language is broad. It contains no limitation on the types of “taxes, fees, excises, or

license taxes” (id.) to which the Amendment applies. It contains no language or term of art that

we would associate exclusively with acts of the General Assembly. It makes no attempt to

differentiate between taxes and fees generated by operation of a statute versus those generated by

operation of a municipal ordinance.

¶ 86 But of course, we don’t isolate passages in our interpretation; we read the Amendment as

a whole. People ex rel. Chicago Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 527

(1990). And subsection (b) contains language suggesting that our task is not so simple. Again,

that subsection, concerning the purposes for which transportation-related taxes may be spent,

reads as follows:

“(b) Transportation funds may be expended for the following: the costs of

administering laws related to vehicles and transportation, including statutory refunds and

adjustments provided in those laws; payment of highway obligations; costs for

construction, reconstruction, maintenance, repair, and betterment of highways, roads,

streets, bridges, mass transit, intercity passenger rail, ports, airports, or other forms of

transportation; and other statutory highway purposes. Transportation funds may also be

expended for the State or local share of highway funds to match federal aid highway

funds, and expenses of grade separation of highways and railroad crossings, including

protection of at-grade highways and railroad crossings, and, with respect to local

governments, other transportation purposes as authorized by law.” (Emphases added.) Ill.

Const. 1970, art. IX, § 11(b).

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¶ 87 The County points to language in subsection (b), italicized above, that includes the word

“law” or some derivation of the word “statute.” As the County correctly notes, those terms refer

to acts of the General Assembly.

¶ 88 When the General Assembly passes a bill, that bill becomes a “law.” Ill. Const. 1970, art.

IV, § 8(b). The phrases “by law” or “authorized by law” refer exclusively to enactments of the

General Assembly. See Illinois State Toll Highway Authority v. American National Bank & Trust

Co. of Chicago, 162 Ill. 2d 181, 200 (1994) (“as provided by law” means as prescribed or

provided by the General Assembly, as “specifically authorized by statute”); Quinn v.

Donnewald, 107 Ill. 2d 179, 186-87 (1985) (phrase “by law” in 1970 Constitution refers to

General Assembly’s “ ‘entire law-making process’ ” (quoting 3 Record of Proceedings, Sixth

Illinois Constitutional Convention 2180 (statements of Delegate Whalen))). Indeed, within the

very same revenue article in which the Amendment appears as section IX, section 1, provides

that “[t]he General Assembly has the exclusive power to raise revenue by law except as limited

or otherwise provided in this Constitution.” (Emphasis added.) Ill. Const. 1970, art. IX, § 1.

¶ 89 Municipalities and counties, in contrast, do not pass laws—they adopt ordinances. As just

one example found in the Constitution, though otherwise not relevant here, the section governing

home-rule units within the local government article contains this provision: “If a home rule

county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall

prevail within its jurisdiction.” Ill. Const. 1970, art. VII, § 6(c). And when differentiating

between acts of the General Assembly and acts of units of local government, the Constitution

makes the distinction clear: “County officers shall have those duties, powers and functions

provided by law and those provided by county ordinance.” Ill. Const. 1970, art. VII, § 4(d). That

24 1-19-0396

sentence would be hopelessly redundant if “by law” and “by county ordinance” were one and the

same.

¶ 90 And nobody could seriously claim that the term “statute” refers to an act of a unit of local

government; it means a law passed by the General Assembly. Certainly in today’s parlance,

meaning the phraseology used circa 2016 when the Amendment was adopted, anyone would

understand “statute” as applying exclusively to state legislative enactments. The General

Assembly refers to its codified public acts as “statutes,” and the compilation of them as

“[c]ompiled [s]tatutes.” 25 ILCS 135/5.04 (West 2018).

¶ 91 The lone reference to a “statute” in the Constitution, before the Amendment in 2016,

makes this clear. It appears in article V, the executive article, which lays out the procedure when

the governor reorganizes executive agencies in such a way as to contravene a “statute.” Ill.

Const. 1970, art. V, § 11. That can only mean a law passed by the General Assembly, the body

that creates and circumscribes the power of executive agencies by law. See Granite City Division

of National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 171 (1993) (executive

agencies are creatures of statute that confines that agency’s authority). Our supreme court

interpreted its jurisdiction under the 1870 Constitution to hear cases involving the construction of

a “statute” and held that it had no jurisdiction to hear an appeal over the construction of a

municipal ordinance, as “an ordinance is not a statute.” Wood v. City of Chicago, 205 Ill. 70, 72

(1903). We see no indication of a different meaning under the 1970 Constitution.

¶ 92 Simply put, the terms “law” and “statute,” within the 1970 Constitution, are synonymous.

They both refer exclusively to enactments of the General Assembly.

¶ 93 With that in mind, we examine the first of the two sentences contained in subsection (b):

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“Transportation funds may be expended for the following: the costs of administering laws

related to vehicles and transportation, including statutory refunds and adjustments

provided in those laws; payment of highway obligations; costs for construction,

reconstruction, maintenance, repair, and betterment of highways, roads, streets, bridges,

mass transit, intercity passenger rail, ports, airports, or other forms of transportation; and

other statutory highway purposes.” (Emphases added.) Ill. Const. 1970, art. IX, § 11(b).

¶ 94 A lot to unpack there. But the upshot is that the County says the various references to

“laws” and the term “statutory” clearly indicate an intent to only sequester revenues spent

pursuant to statute.

¶ 95 Among several examples is the final catch-all phrase “and other statutory highway

purposes.” Id. It is tempting to invoke the familiar rule of construction here that, when a list is

given, and an inclusive wrap-up modifier with the term “other” is used, that modifier describes

the components of the list that preceded it. See People v. Davis, 199 Ill. 2d 130, 138 (2002)

(“when a statutory clause specifically describes several classes of persons or things and then

includes ‘other persons or things,’ the ‘other’ is interpreted as meaning ‘other such like’ ”

(quoting Farley v. Marion Power Shovel Co., 60 Ill. 2d 432, 436 (1975))).

¶ 96 If that were the intent of the framers, it would follow that this final clause was intended to

modify everything on the list that preceded it—that is, everything on that list was a “statutory

highway purpose.” And that would obviously support the County’s read of the Amendment.

¶ 97 But no canon of construction is absolute; we will not invoke that or any other canon if it

yields an illogical result. People v. Hanna, 207 Ill. 2d 486, 498 (2003). And while everything on

the list preceding that final clause could theoretically be considered a “statutory” purpose, not

everything would fall under the definition of a “highway” purpose. Plaintiffs point to language in

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the clause preceding the final clause, which includes purposes such as constructing and

maintaining “mass transit, intercity passenger rail, ports, [and] airports”—none of which, say

plaintiffs, could possibly qualify as “highways.”

¶ 98 In determining what a “statutory highway” purpose means, it seems logical enough to

consider how the legislature has historically defined it—in a “statute” that governs “highways.”

The Illinois Highway Code “defines “highway” as “any public way for vehicular travel which

has been laid out in pursuance of any law of this State, or of the Territory of Illinois,” including

“rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other

structures and appurtenances necessary or convenient for vehicular traffic.” 605 ILCS 5/2-202

(West 2018). And “[a] highway in a rural area may be called a ‘road,’ while a highway in a

municipal area may be called a ‘street.’ ” Id.

¶ 99 That definition of “highway” is broad, but not so broad to encompass a port or airport. So

plaintiffs are correct. That canon of construction does not apply—not everything on that list in

the first sentence is a “statutory highway” purpose.

¶ 100 Indeed, plaintiffs could turn the tables and use that reference to “statutory highway

purposes” in their favor. That is, subsection (b)’s first sentence contains a list of four purposes,

two of which mention “laws” or “statutory”—indicating enactments of the General Assembly

exclusively—but two of which do not. The drafters thus obviously knew how to include those

terms when they wished, yet they chose not to do so when describing the second and third

purposes: “payment of highway obligations” and “costs for construction, reconstruction,

maintenance, repair, and betterment of highways, roads, streets, bridges, mass transit, intercity

passenger rail, ports, airports, or other forms of transportation.” Ill. Const. 1970, art. IX, § 11(b).

The absence of those terms in those clauses, then, might suggest that the drafters specifically

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intended not to limit the purposes to “statutory” ones and, instead, intended to include purposes

contained in local ordinances, too. See People v. Olsson, 2011 IL App (2d) 091351, ¶ 9 (“It is a

generally accepted canon of construction that the express inclusion of a provision in one part of a

statute and its omission in a parallel section is an intentional exclusion from the latter.”).

¶ 101 But on the other hand, if plaintiffs are correct and the Amendment restricts revenue

spending governed by home-rule ordinance as well as statute, why mention “laws” and “statutes”

without mentioning “ordinances,” too? Or for that matter, the framers could have mentioned

none of them, thereby including all of them. After all, that’s what they did in subsection (a).

They made no mention of statutes or ordinances and, by their absence, suggested a scope broad

enough to encompass both. Yet in subsection (b)’s first sentence, they specified enactments of

the General Assembly without ever once mentioning ordinances or enactments of home-rule

units.

¶ 102 And on the subject of those few items that plaintiffs identify in subsection (b) that do not

qualify as “highway” purposes—construction and maintenance of “mass transit, intercity

passenger rail, ports, [and] airports” (Ill. Const. 1970, art. IX, § 11(b))—we find every reason to

believe that, while they may not be highway purposes, the drafters of the Amendment considered

them statutory purposes. We reach that conclusion by looking at subsection (c) of the

Amendment.

¶ 103 That subsection defines one of the purposes expressed in subsection (b), the first one:

“the costs of administering laws related to vehicles and transportation, including statutory

refunds and adjustments provided in those laws.” Id. Subsection (c)’s description of that phrase

includes the following:

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“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; and the construction, reconstruction, improvement,

repair, maintenance, operation, and administration of highways, under any related

provisions of law or any purpose related or incident to, including grade separation of

highways and railroad crossings.” (Emphases added.) Ill. Const. 1970, art. IX, § 11(c).

¶ 104 This language includes “the safety of *** mass transit, intercity passenger rail, ports, or

airports” (id.) within the definition of “laws,” meaning statutes.

¶ 105 That takes us to the other sentence in subsection (b), which provides further support for

the County’s claim that only the spending of revenues governed by statute are sequestered by the

Amendment: “Transportation funds may also be expended for the State or local share of highway

funds to match federal aid highway funds, and expenses of grade separation of highways and

railroad crossings, including protection of at-grade highways and railroad crossings, and, with

respect to local governments, other transportation purposes as authorized by law.” (Emphasis

added.) Ill. Const. 1970, art. IX, § 11(b).

¶ 106 “Authorized by law,” as we have said, means authorized by statute. The reference there

to “local governments” includes both home-rule and non-home-rule units, of course. The fact

that this language treats home-rule and non-home-rule units the same, both requiring

“authoriz[ation] by law,” is telling, because home-rule units do not always require authorization

by law when they spend tax revenue. As noted at length above, sometimes, a statute authorizes a

home-rule unit to impose a tax but does not mandate how that that home-rule unit will spend the

tax revenue, as we noted above with an example. See, e.g., 65 ILCS 5/8-11-1 (West 2018)

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(allowing home-rule municipalities to impose retailers’ occupation tax but not specifying how

tax revenues must be spent). And of course, other times, a home-rule unit will impose a tax based

on its own constitutional taxing power and will spend that tax revenue under its general home-

rule powers, with no statute entering the picture at all. If plaintiffs are correct that revenues spent

pursuant to traditional home-rule power are included within this scope, what “authorization by

law” should that home-rule unit consult? If no statute governs its spending, what statute could

the home-rule unit possibly consult for authority?

¶ 107 This language only makes sense one way: In allowing for “local governments” to spend

transportation tax revenues for “other transportation purposes as authorized by law,” the

Amendment can only be referring to those situations where home-rule and non-home-rule units

have the same spending powers—which is when, and only when, they are following the spending

dictates of a statute. It is nearly impossible to reconcile plaintiffs’ position, that all revenue

spending is restricted by this Amendment, even that which is not governed by statute, with this

language in the second sentence of subsection (b).

¶ 108 That subsection aside, the County’s interpretation also finds support in the Amendment’s

subsection (e), providing that “[i]f the General Assembly appropriates funds for a mode of

transportation not described in this Section, the General Assembly must provide for a dedicated

source of funding.” Ill. Const. 1970, art. IX, § 11(e). That provision is obviously intended for

future, currently unknown modes of transportation and provides that if the state legislature

decides that some new mode of transportation is worthy of state funding, it will have to dedicate

a tax or other source of funding to it—which likely will have the effect, under subsection (a), of

permanently locking in the protections of the Amendment over those revenues, too.

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¶ 109 But why only mention the General Assembly and not home-rule units as well? If the

Amendment is as broad as plaintiffs say, and the spending of revenue not governed by statute is

also restricted, why give home-rule units a pass in subsection (e)? A home-rule unit is just as

capable of “appropriat[ing] funds” for some new mode of transportation, and equally able to

“provide for a dedicated source of funding”—that is, impose a tax and dedicate a revenue

stream—as the General Assembly is. Why lock down the General Assembly but give home-rule

units a pass? If plaintiffs are correct, and the Amendment intended to restrict a home-rule unit’s

spending of transportation-related tax revenue not governed by statute but only via home-rule

ordinance, the drafters seriously whiffed by omitting home-rule units from the language of

subsection (e). The exclusion of any reference to home-rule units in subsection (e) cannot be

ignored.

¶ 110 We reach a final point raised by both parties: the absence of any mention of home-rule

units and their powers anywhere in the Amendment. As we will see, it cuts both ways.

¶ 111 The County says if the drafters had intended to preempt home-rule power to spend

revenue, the Amendment would have been required to specifically state that home-rule powers

were preempted—much like statutes are required to specifically preempt home-rule power in

various contexts. See Ill. Const. 1970, art. VII, § 6(i); 5 ILCS 70/7 (West 2018). Something

along these lines: “The provisions of this Section are a denial and limitation of home-rule powers

and functions.” That is the language the General Assembly uses when it preempts home-rule

authority. See, e.g., Pub. Act 101-10, § 15-45 (eff. June 5, 2019) (amending 65 ILCS 5/8-11-1).

¶ 112 Or, says the County, if the framers intended the broad scope that plaintiffs advocate, they

should have amended section 6 of the local government article, where home-rule powers are

found. See Ill. Const. 1970, art. VII, § 6. The broad language there provides: “Except as limited

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by this Section, a home rule unit may exercise any power and perform any function pertaining to

its government and affairs ***.” (Emphasis added.) Ill. Const. 1970, art. VII, § 6(a). Right there,

next to the italicized language, or at least somewhere within that “section,” a reference could

have been made to the Amendment being an additional restriction on home-rule power, along

with others contained in that “section.”

¶ 113 Plaintiffs respond that constitutional provisions may apply to and restrict home-rule

power without using any such language—or without even mentioning home-rule powers.

Nobody would dispute, for example, that provisions protecting free speech, the free exercise of

religion, or the right to a non-diminished public pension are applicable to home-rule units, even

though none of those provisions specifically say they are.

¶ 114 In fact, plaintiffs argue, the absence of any mention of home-rule powers cuts the other

way. The drafters of the Amendment knew how to create exemptions—they did that very thing

by exempting federal funds from its scope in subsection (f). See Ill. Const. 1970, art. IX, § 11(f).

Thus, say plaintiffs, the absence of any mention of home-rule units suggests that no exemption

for them was intended.

¶ 115 We would agree with plaintiffs to some extent. We are cited no precedent holding that the

applicability of a constitutional provision to a home-rule unit is dependent on language within

that provision specifically applying itself to a home-rule unit. And we can think of no reason

why some bright-line rule of that nature would make sense.

¶ 116 The rule that statutes must expressly indicate a preemption of home-rule powers, while

certainly contained in the Statute on Statutes (see 5 ILCS 70/7 (West 2018)), in reality stems not

from that source but from the Constitution itself. See Ill. Const. 1970, art. VII, § 6(i) (home-rule

units may exercise powers concurrently with State “to the extent that the General Assembly by

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law does not specifically limit the concurrent exercise or specifically declare the State’s exercise

to be exclusive” (emphases added)); Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013

IL 110505, ¶ 36.

¶ 117 But the Constitution contains no provision requiring that another constitutional provision,

even an amendment, contain express language preempting home-rule power to be effective. The

express-preemption rule for statutes does not apply to constitutional provisions.

¶ 118 Still, while it is true that the drafters of the Amendment did not contain an express

exemption for the exercise of home-rule spending power, as it did for the expenditure of federal

funds in subsection (f), we do find it significant that the Amendment contains no express

inclusion of home-rule spending powers within its scope. We say that not as some bright-line

rule but based on the specific language of the Amendment, as we have already discussed. After

all, in subsections (b) and (c), the framers went to the trouble of specifically mentioning “laws”

and “statut[es]” but never ordinances, and then in subsection (e) mentioned future restrictions on

“the General Assembly” but not on home-rule units. Ill. Const. 1970, art. IX, § 11(b), (c), (e).

¶ 119 And when the Amendment did mention “local governments” (Ill. Const. 1970, art. IX,

§ 11(b)), a grand total of one time, it lumped all units of local government together, home-rule

and non-home-rule alike. Treating them without distinction, in the context of spending power,

makes sense only in situations where a statute governs the local governments’ spending of tax

revenue, rendering local governments of all kinds, home-rule or not, the same in their

subordination to state law.

¶ 120 If the framers intended the Amendment to be read as plaintiffs contend, one would think

that the framers might have noticed their frequent inclusion of words like “laws” and “statutory,”

their wholesale exclusion of the words “ordinance” or “home rule,” their restriction on the

33 1-19-0396

General Assembly but not home-rule units in subsection (e), and their failure to make any

distinction in their discussion of “local governments” between home-rule and non-home-rule

units—and make some attempt to clarify that home-rule spending powers were being restricted

by the Amendment. But they did not.

¶ 121 Where does that leave things? We think the County has the better of the argument. Yes,

subsection (a) speaks in the broadest terms about revenue sources, favoring plaintiffs’

interpretation. But that language is cabined by the language of subsections (b), (c), and (e),

which lead to the almost inescapable conclusion that the Amendment covers only those revenues

spent in accordance with state law, which would exclude transportation-related revenues spent

pursuant to home-rule power.

¶ 122 If the County is right, why the broad language in subsection (a)? We would hazard this

reason: The framers wrote subsection (a) so broadly because, in theory, any spending of tax

revenue might be governed by statute. As we explained at the outset, all spending of state-

imposed tax revenue is governed by statute, whether spent by the State or distributed to local

governments. All spending of tax revenue by non-home rule units is governed by statute. And

some spending of tax revenue by home-rule units is governed by statute—but all such home-rule

spending, in theory, could be. The General Assembly can always preempt a home-rule unit’s

spending powers.

¶ 123 Viewed in that light, it might have made sense to the framers to draft subsection (a)

broadly to account for all the transportation-related taxes imposed at any level of government,

understanding that the limitations in subsections (b), (c), and (e) would cabin that scope.

¶ 124 Having said all this, while we find plaintiff’s interpretation less convincing, it is not

altogether unreasonable. The breadth of subsection (a), alone, gives one pause. Plaintiffs’

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position on subsection (b) is not unreasonable, either. While we prefer the County’s take, it

remains fair to say that only some of the spending purposes listed in subsection (b) are modified

by the word “law” or “statutory,” leaving open the possibility that the framers omitted those

modifiers when describing other purposes because they intended a broader meaning than merely

“statutory” purposes. And as plaintiffs argue, if the intent of the framers were to altogether

exclude home-rule spending powers from the Amendment, a few words would have done the

trick.

¶ 125 In the end, the Amendment is far—light years—from a model of draftsmanship.

Language favoring either the County’s or the plaintiff’s interpretation would have been quite

easy to insert. In the face of two competing interpretations, both of which we find reasonable to

one degree or another, we deem the language ambiguous. See Nowak v. City of Country Club

Hills, 2011 IL 111838, ¶ 11.

¶ 126 C

¶ 127 In the face of an ambiguous constitutional provision, we consider the legislative debates

and the information provided to the voters of Illinois regarding the Amendment. See Hooker,

2016 IL 121077, ¶ 35 (when constitutional language is ambiguous, resort to extrinsic aids, such

as “the drafting history of the provision,” are appropriate (internal quotation marks omitted)). We

will also consider recent legislation passed by the General Assembly that both parties have cited.

We begin with the legislative debates.

¶ 128 1

¶ 129 First, some brief background. Generally speaking, the General Assembly has always had

the authority to move revenue receipts—money—from one state fund to another. That is true

even if a statute says that funds may not be transferred—because the General Assembly can

35 1-19-0396

always amend that statute and remove the transfer prohibition for that one time (if not

permanently). See A.B.A.T.E. of Illinois, Inc. v. Quinn, 2011 IL 110611, ¶ 25; Department of

Public Welfare v. Haas, 15 Ill. 2d 204, 215 (1958) (“The fact that the legislature may provide

that amounts, when collected, shall be placed in a certain fund does not ordinarily preclude a

later General Assembly from ordering it paid into another fund or from abolishing the fund

altogether.”). Statutes exist at the whim of the General Assembly to amend as it pleases.

¶ 130 The movement of money from one fund to another is often called a “sweep” of that

money. And a principal, if not the principal, problem that the supporters of the Amendment

sought to address was “sweeps” of transportation-related funds into other, non-transportation-

related funds. One example was the subject of a decision of our supreme court, A.B.A.T.E., 2011

IL 110611, ¶ 19, which concerned the General Assembly’s sweep of funds out of the Cycle

Riders Safety Training Fund and into the General Revenue Fund.

¶ 131 A more common example is a sweep of the Road Fund, which over the years the General

Assembly has frequently raided for other purposes. For example, in 2015, the year before the

Amendment was placed on the ballot, the General Assembly swept $250 million from the Road

Fund, along with $50 million from the State Construction Fund, $50 million from the Motor Fuel

Tax Fund, $40 million from the County and Mass Transit District Fund, $10 million from the

Grade Crossing Fund, and $9 million from the Public Infrastructure Construction Loan

Revolving Fund—all into the General Revenue Fund, a decidedly non-transportation-specific

fund. See Pub. Act 99-2, § 15 (eff. Mar. 26, 2015) (adding 30 ILCS 105/8.50).

¶ 132 In both the House and the Senate, supporters of the Amendment made prominent mention

of the problem of sweeps from transportation-dedicated state funds into the General Revenue

Fund or other non-transportation-specific funds. In his opening remarks on the House floor, the

36 1-19-0396

sponsor, Representative Phelps, complained that “Too many times we had funds that have been

swept.” 99th Ill. Gen. Assem., House Proceedings, April 22, 2016, at 18 (statements of

Representative Phelps). He then had this exchange with Representative Sandack:

“[REPRESENTATIVE] SANDACK: Representative, would this avoid any

sweeps in the future if this question is approved by voters?

[REPRESENTATIVE] PHELPS: That’s exactly right.

[REPRESENTATIVE] SANDACK: And it would keep segregated sacrosanct tax

dollars for improvements to the infrastructure…for infrastructure and infrastructure only?

[REPRESENTATIVE] PHELPS: Absolutely.” Id. (statements of Representatives

Sandack and Phelps).

¶ 133 In his introductory remarks in the Senate, the sponsor, Senator Haine, said this:

“[M]otor fuel taxes and motor vehicle registration fees are today deposited into the Road

Fund and the State Construction Fund to pay for construction projects and debt service on

bonds issued for previous construction projects. Under this constitutional amendment,

these revenue sources would be protected and can only be spent for transportation

purposes. As a result, this amendment is intended to overrule the Illinois Supreme Court

2011 case A.B.A.T.E. of Illinois versus Quinn, which upheld the State’s authority to

repurpose and spend monies raised through motor vehicle tax—registration fees on non-

transportation purposes.” 99th Ill. Gen. Assem., Senate Proceedings, May 5, 2016, at 58-

59 (statements of Senator Haine).

¶ 134 We would quibble with one thing the senator said: The Amendment did not “overrule”

the A.B.A.T.E. decision, which merely recognized the General Assembly’s constitutional power

to amend any statute and thus move money between funds at will. The Amendment simply

37 1-19-0396

imposed a constitutional limitation on the General Assembly’s power to do so in the specific

context of revenues generated by transportation-related taxes or fees. The General Assembly

may still amend statutes and may still move money between funds, but if the revenues were

initially generated by a State-imposed transportation-related tax or fee, that money must now be

spent for some transportation-related purpose—no matter where the money moves, and no matter

who spends it—the State or a unit of local government.

¶ 135 The legislative debates made this clear, if it were not already. For example, this exchange

on the floor of the Senate between the Amendment’s sponsor, Senator Haine, and Senator

McConnaughay (for brevity, we omit from the transcript the statements of the presiding officer

directing the conversation from one senator to another):

“SENATOR MCCONNAUGHAY: *** I read in—the language in the

constitutional amendment and I agree the language used is ambiguous. Do you view the

language as ambiguous?

***

SENATOR HAINE: Yes, somewhat, and that’s why we’re doing these questions

to—to clarify this.

***

SENATOR MCCONNAUGHAY: Senator, you mentioned the—the motor fuel

taxes in your introductory remarks and—and last answer. Am I correct that the

constitutional amendment also protects the current distribution of monies raised from the

State motor fuel tax that are shared with local governments as well as transferred to the

State Boating Act Fund, Grade Crossing Protection Fund, and Vehicle Inspection Fund?

***

38 1-19-0396

SENATOR HAINE: Yes, that is correct. The current distribution of monies from

the State motor fuel taxes are dedicated to transportation purposes. It is not the intention

of this amendment to alter the current distribution of motor fuel tax revenues, including

those distributions that are—that currently cover administrative costs.” (Emphasis

added.) Id. at 62-63 (statements of Senators McConnaughay and Haine). 1

¶ 136 Presumably both parties would agree that this colloquy supports, if nothing else, the

notion that the Amendment sequesters revenues from taxes imposed by the State itself, pursuant

to state law (as always), and distributed to units of local government—home-rule or otherwise.

¶ 137 And the legislative debates further support the notion that the Amendment is intended to

restrict a unit of local government’s spending of its own tax revenues, as long as that spending,

again, is controlled by statute:

“SENATOR MCCONNAUGHAY: Senator Haine, that leads me to my next

question. What about the Regional Transportation Authority’s sales tax that is imposed in

Cook and the collar counties and the Real Estate Transfer Tax in the City of Chicago that

are dedicated to Public Transportation Fund? Are those monies protected by this

constitutional amendment?

***

SENATOR HAINE: Yes, Senator McConnaughay. Those monies from the RTA

sales tax and that portion of the City of Chicago’s Real Estate Transfer Tax that the

1 A nearly identical exchange took place on the floor of the House with the House sponsor, Representative Phelps. See 99th Gen. Assem., House Proceedings, April 22, 2016, at 20-21 (statements of Representatives Phelps and Fortner). 39 1-19-0396

Chicago Transit Authority receives are protected by the constitutional amendment.” Id. at

63 (statements of Senators McConnaughay and Haine). 2

¶ 138 And the reason those Regional Transportation Authority (RTA) revenues are protected by

the Amendment is that the spending of that tax revenue is dictated by statute. The RTA, a

regional public transportation body, is a unit of local government created by the Regional

Transportation Authority Act. See 70 ILCS 3615/1.01, 1.04 (West 2018). That act gives the RTA

the authority to impose certain transportation-related taxes and provides that the revenue shall be

spent “to carry out any of the powers or purposes of the [RTA]” (id. § 4.03(a)), which are then

listed in various places throughout the act.

¶ 139 So far, so good. That confirms both parties’ (and our) interpretation that the Amendment,

if nothing else, “protects” or sequesters revenues from transportation-related taxes that are spent

pursuant to statute, either by the State itself or by a unit of local government following the

dictates of a statute.

¶ 140 The big question here, of course, is whether the Amendment went further and likewise

requires the sequestration of funds that a home-rule unit spends pursuant to its independent

constitutional home-rule spending power, not pursuant to statute. On that question, the sponsors

of the Amendment were emphatic—the Amendment was not intended to preempt home-rule

spending powers. The Senate sponsor, Senator Haine, included this in his opening remarks:

“This proposed constitutional amendment is intended to be on a par with Article VII,

Section 6 [the home-rule section] of the Constitution and current home-rule power. This

proposed constitutional amendment is not intended to eliminate, restrict, or apply to

2 Again, a nearly verbatim discussion of the RTA sales tax and Chicago’s real estate transfer tax occurred on the House floor. See 99th Gen. Assem., House Proceedings, April 22, 2016, at 21 (statements of Representatives Phelps and Fortner). 40 1-19-0396

current constitutional and statutory authority that home-rule units have relative to taxes,

spending, and other public safety functions.” 99th Ill. Gen. Assem., Senate Proceedings,

May 5, 2016, at 59 (statements of Senator Haine).

¶ 141 The County relies most heavily on a colloquy in the Senate between the sponsor and

Senator Raoul (representing a district within the state’s two largest home-rule units, the City of

Chicago and Cook County):

“SENATOR RAOUL: As mentioned, this—this language is very ambiguous to

me, so I just want to ask these questions. Senator Haine, Cook County imposes several

taxes that provide revenue for public safety operations, including, but not limited to, the

criminal court system, the Cook County Jail, Cook County Sheriff, the Cook County

State’s Attorney, the Office of the Chief Judge of Cook County. These taxes are imposed

by virtue of Cook County’s home-rule taxing authority under the Illinois Constitution.

Specifically, Cook County imposes the Wheel Tax, New Motor Vehicle Tax, Motor Fuel

Taxes, the Use Tax, the Non-Retailer Vehicle Transaction Tax, and the Non-Retailer Use

Tax. Again, revenues from these taxes are used to pay for Cook County’s public safety

operations, including workers’ compensation claims for affected public safety employees.

Am I correct that under this constitutional amendment, Cook County could continue to

spend the monies from—from these taxes on its public safety operations?

***

SENATOR HAINE: The answer is yes for four reasons. First, as I explained

earlier, this proposed constitutional amendment is intended to be on a par with Article VI

[sic] (VII), Section 6 of the Constitution and current home-rule power. The proposed

constitutional amendment is not intended to eliminate, restrict, or apply to current

41 1-19-0396

constitutional and statutory authority that home-rule units have—have relative to taxes,

spending, and public safety functions. Secondly, since the Cook County’s Use Tax and

Non-Retailer Use Tax are general taxes on all tangible personal property just like the

State sales tax, those taxes are not covered by this constitutional amendment, as I’ve

explained earlier. Thirdly, as I stated earlier, it is a valid transportation purpose to spend

monies under this amendment on the enforcement of traffic, railroad, and motor carrier

laws. As a result, Cook County can continue to spend monies from these public safety

operations at—as it is today.

***

SENATOR HAINE: Finally, I draw your attention to page 2, lines 13-14 of the

constitutional amendment. Here the amendment provides that transportation funds may

be expended ‘with respect to local governments, other transportation purposes as

authorized by law.’ The key phrase is ‘authorized by law.’

***

SENATOR HAINE: This phrase, ‘as authorized by law’, includes local

governments’ current use as authorized by current law—for instance, critical public

safety functions as police departments, jail operations, and courts. This provision is

intended to be construed broadly so as not to interfere in any way with local

governments’ current authority and practices. The language permits the General

Assembly to determine, with respect to local governments, what are other proper

transportation purposes by statute. It is also permitting home-rule units to determine what

are other proper transportation purposes as well by virtue of their home-rule taxing power

under Article VII, Section 6 of the Constitution. Given that Cook County and the City of

42 1-19-0396

Chicago as well as other home-rule units have the home-rule power to impose taxes that

you listed, this language provides a further basis allowing the home-rule units to spend

these monies on public safety.” Id. at 67-70 (statements of Senators Raoul and Haine).

¶ 142 There was a lot to that exchange, not all of it striking us as entirely accurate, but the

important and unmistakable takeaway, at least for the County’s purposes, is that it supports the

notion that the drafters of the Amendment did not intend to sequester transportation-related tax

revenues that Cook County spends pursuant to its home-rule authority. Senator Raoul mentioned

nearly every single tax that is the subject of the complaint here, asking whether the Amendment

prevented the County from spending those tax revenues as it deemed appropriate—that is, for

public safety and not transportation—and the sponsor’s answer was clear: the Amendment did

not preempt Cook County’s constitutional home-rule authority to spend those revenues as it sees

fit. It is hard to get more on-the-nose than that.

¶ 143 The legislative debates thus support the interpretation the County advances and which

struck us as the more reasonable of the competing interpretations. The Amendment restricts the

spending of transportation-related tax revenues when the spending of that revenue is dictated by

state law, but it does not impact a home-rule unit’s spending of revenue pursuant to its

constitutional home-rule spending power.

¶ 144 2

¶ 145 We also consult the explanations of the Amendment that were published and sent to the

voters of this State, as required by the Constitution. See Ill. Const. 1970, art. XIV, § 2(b)

(“Amendments proposed by the General Assembly shall be published with explanations, as

provided by law, at least one month preceding the vote thereon by the electors.”). This, in our

view, should have prominent importance. After all, the General Assembly didn’t put this

43 1-19-0396

Amendment into the Constitution—it just put it on the ballot. The citizens of this State adopted

this Amendment by their vote at the November 2016 general election. So it seems only fair and

appropriate that we consider what the people of Illinois were told about this Amendment before

they cast their vote.

¶ 146 The ballot summary from the Secretary of State printed the language of the Amendment

in full and then provided an explanation of the Amendment as well as arguments for and against

its adoption. The ballot summary’s “explanation” read as follows:

“The proposed amendment adds a new Section to the Revenue Article of the

Illinois Constitution that provides revenue generated from transportation related taxes and

fees (referred to as ‘transportation funds’) shall be used exclusively for transportation

related purposes. Transportation related taxes and fees include motor fuel taxes, vehicle

registration fees, and other taxes and user fees dedicated to public highways, roads,

streets, bridges, mass transit (buses and rail), ports, or airports.

Under the proposed amendment, transportation funds may be used by the State or

local governments only for the following purposes: (1) costs related to administering

transportation and vehicle laws, including public safety purposes and the payment of

obligations such as bonds; (2) the State or local share necessary to secure federal funds or

for local government transportation purposes as authorized by law; (3) the construction,

reconstruction, improvement, repair, maintenance, and operation of highways, mass

transit, and railroad crossings; (4) expenses related to workers’ compensation claims for

death or injury of transportation agency employees; and (5) to purchase land for building

highways or buildings for to be used for highway purposes.

44 1-19-0396

This new Section is a limitation on the power of the General Assembly or a unit

of local government to use, divert, or transfer transportation funds for a purpose other

than transportation. It does not, and is not intended to, impact or change the way in which

the State and local governments use sales taxes, including the sales and excise tax on

motor fuel, or alter home rule powers granted under this Constitution. It does not seek to

change the way in which the State funds programs administered by the Illinois Secretary

of State, Illinois Department of Transportation, and operations by the Illinois State Police

directly dedicated to the safety of roads, or entities or programs funded by units of local

government. Further, the Section does not impact the expenditure of federal funds, which

may be spent for any purpose authorized by federal law.” (Emphases added.)

¶ 147 By and large, its first two paragraphs merely parrot the language of the Amendment

itself. Plaintiffs highlight the phrase, “transportation funds may be used by the State or local

governments only for the following purposes.” No distinction between which kinds of revenues,

in other words. Plaintiffs are correct that the language is broadly worded. But the third paragraph

goes into specifics, including, of course, the very specific language that the Amendment is not

intended to “alter home rule powers granted under this Constitution.” That language quite

explicitly carves out an exception to the more general statement on which plaintiffs rely.

¶ 148 We can harmonize those two passages under the County’s read of the ordinance. The

notion that “transportation funds may be used by State or local governments only for the

following [transportation-related] purposes” is not inaccurate. The Amendment will restrict

local-government spending—except when a local government is spending under its “home rule

powers,” as the later phrase qualifies.

45 1-19-0396

¶ 149 We cannot, on the other hand, harmonize this language under plaintiffs’ read of the

Amendment. There is no way to take plaintiffs’ interpretation as doing anything but “alter[ing]

home rule powers.” Plaintiffs say we are wrong, that this language about not altering home-rule

powers is just a “passing comment” that “means only that the amendment was not intended to

change the constitution’s general formulation of home rule powers or to change the

constitution’s allocation of authority between the State government and home rule units of

government.”

¶ 150 That can’t be. Nobody reading the Amendment (or the ballot summary) would have

thought it was so dramatic as to “change the constitution’s general formulation of home rule

powers,” any more than it would have been read to change the general formulation of the

General Assembly’s powers. And in fact, under the County’s interpretation, the Amendment

does not “change the constitution’s allocation of authority between the State government and

home rule units of government.” While plaintiffs are correct that the Amendment does not say

“that home rule units would be exempt from the amendment or excused from complying with it,”

that’s because home-rule units are not “exempt” entirely from this Amendment. If they are

receiving funds from the State or dictated in any other way by the State as to how to spend

transportation-related tax revenues, they are restricted by the Amendment. It is only when a

home-rule unit is exercising its own home-rule spending authority that the Amendment does not

apply.

¶ 151 The ballot summary’s “arguments in favor of the proposed amendment” told the voters

this:

“Historically, the State and units of local government have used portions of revenue from

transportation funds for other purposes. Approval of this amendment will ensure that

46 1-19-0396

transportation funds are used only for transportation purposes. This limitation provides a

dedicated source of funding for projects that will increase the quality of Illinois’ roads,

bridges, bridge and road safety inspections, and mass transit. Improving the quality of our

roads and highways will help reduce accidents and damage to vehicles caused by road

conditions or hazards.”

¶ 152 We find nothing in that language inconsistent with our interpretation, nor anything that

remotely suggests that home-rule units’ ability to exercise their home-rule spending power as

they see fit is impacted by the Amendment. Nor do we find anything inconsistent in the

published “arguments against the proposed amendment” sent to the voters:

“Approval of the proposed amendment unnecessarily limits the power of the State and

local governments to appropriate public revenues for the general welfare of all Illinoisans

in order to protect funding for one particular purpose—transportation. Our elected

officials should be asked to prioritize the use of public funds, but this amendment would

restrict their ability to spend funds as the elected officials and taxpayers deem fit. As a

result, elected officials may be asked to reduce funding for other priorities, such as

education or social service programs.”

¶ 153 This language is broadly worded but can easily fit within the County’s interpretation. The

State and, to a significant degree, local governments are “restrict[ed]” in how they spend certain

forms of revenue under the Amendment. And the results of that restriction are just as described;

officials will not be able to spend those funds on other priorities.

¶ 154 We do not find the ballot summary inconsistent with the County’s interpretation. We

would, on the other hand, find it hard to square the ballot summary with plaintiff’s broader

interpretation.

47 1-19-0396

¶ 155 3

¶ 156 Though we find the legislative debates and the Secretary of State’s published

explanations consistent with the County’s (and our preferred) interpretation of the Amendment,

we comment on one other item called to our attention by both parties and capable of judicial

notice, in any event—recent legislation passed by the General Assembly on this topic. In 2019,

the General Assembly adopted Public Act 101-32, which among other things created the

“Transportation Funding Protection Act.” See Pub. Act 101-32 (eff. June 28, 2019) (adding 30

ILCS 178/5-10). The substantive law reads in its entirety as follows:

“(a) It is known that transportation funding is generated by several transportation

fees outlined in Section 2 of the Motor Fuel Tax Act, Section 5-1035.1 of the Counties

Code, Section 8-11-2.3 of the Illinois Municipal Code, and Sections 3-805, 3-806, 3-815,

3-818, 3-819, 3-821, and 6-118 of the Illinois Vehicle Code.

(b) The proceeds of the funds described in this Act and all other funds described

in Section 11 of Article IX of the Illinois Constitution are dedicated to transportation

purposes and shall not, by transfer, offset, or otherwise, be diverted by any local

government, including, without limitation, any home rule unit of government, to any

purpose other than transportation purposes. This Act is declarative of existing law.” Id.

¶ 157 This act is consistent with the County’s interpretation of the Amendment. For one thing,

the taxes and fees listed in subsection (a) are obviously all statutorily authorized—the statutes are

mentioned right there in the language—and thus carry with them statutorily dedicated purposes

for which the revenues may be spent. And the reference to “other funds described in” the

Amendment is a reference to revenues generated pursuant to laws like the one the legislators

mentioned in debate, the Regional Transportation Authority Act, a statute that authorize non-

48 1-19-0396

home-rule unit taxes and prescribes how those revenue may be spent by that unit, the RTA. See

70 ILCS 3615/1.01, 1.04, 4.03, 4.03.1 (West 2018).

¶ 158 For another thing, this legislation does not preempt home-rule authority, because it does

not contain the requisite language specifically preempting home-rule powers. See 5 ILCS 70/7

(West 2018). And the reason it doesn’t preempt home-rule power is that it’s only referring to a

home-rule unit’s spending of tax proceeds pursuant to statute, where home-rule powers do not

come into play. If this legislation were intended to restrict the home-rule power to spend, the

preemption language would be required. See Ill. Const. 1970, art. VII, § 6(i); Palm, 2013 IL

110505, ¶ 36; 5 ILCS 70/7 (West 2018). Its absence speaks volumes.

¶ 159 Thus, subsection (b)’s reference to home-rule units of local government is simply a

recognition, consistent with the County’s read of the Amendment, that home-rule units spending

transportation tax revenues under statutory authority (not their own independent constitutional

authority) must spend the money on transportation purposes. That is why the language in the act

indicates that its provisions are “declarative of existing law”—that is, declarative of what the

Amendment already says. Pub. Act 101-32 (eff. June 28, 2019) (adding 30 ILCS 178/5-10(b)).

¶ 160 In sum, all of the extrinsic information that might inform us of the Amendment’s intent

points to the same conclusion that struck us as the most reasonable as well: The Amendment

protects from diversion those revenues from transportation-related taxes whose expenditure is

authorized by statute. The Amendment does not sequester revenues from transportation-related

taxes spent by home-rule units pursuant to their independent constitutional spending power.

¶ 161 D

¶ 162 Plaintiffs complain that our interpretation renders the Amendment toothless. They say if

the protections in the Amendment are based only on what is contained in a statute, and a statute

49 1-19-0396

may be amended at any time by the General Assembly, then the General Assembly could

essentially legislate the Amendment out of existence through statutory changes to these laws.

The County, for its part, and to our surprise, agrees—it likewise sees the logical extension of its

position to be that the General Assembly can always amend statutes and remove transportation

purposes from the statutory authorization for spending these moneys.

¶ 163 On this point, we disagree with the County. This Amendment is anything but toothless.

Subsection (d) of the Amendment states that “[n]one of the revenues described in subsection (a)

of this Section shall, by transfer, offset, or otherwise, be diverted to any purpose other than those

described in subsections (b) and (c) of this Section.” Ill. Const. 1970, art. IX, § 11(d). This

language is easily broad enough to restrict the various statutory actions the General Assembly

may take to circumvent the Amendment—sweeps by the General Assembly from one fund to

another, or legislative attempts to eliminate transportation purposes from statutory spending

authorizations (or add non-transportation purposes to those statutes).

¶ 164 The point of the Amendment is to sequester transportation tax revenues from the moment

they are generated until the moment they are spent—on transportation purposes. Subsection (d),

as we read its broad language, would follow that money wherever it went and thwart any

legislative attempt to divert those funds to other spending purposes. We fail to see how the

General Assembly could “legislate around” the restrictions in the Amendment. We thus find no

merit to the claim that our interpretation would render the Amendment functionally impotent.

¶ 165 E

¶ 166 The County argues that, because the Amendment is “only applicable to situations

involving governments’ use of transportation-related monies as specified by an applicable statute

and is thus inapplicable to the County under the circumstances of the instant case,” the lawsuit

50 1-19-0396

was properly dismissed. We agree, as we have said, with the County’s interpretation of the

Amendment. And we agree with its suggested disposition as well.

¶ 167 The taxes imposed by the County that are the subject of the complaint are six different

taxes. The County spends the revenue from each of these taxes pursuant to its home-rule

spending power, not in accordance with a statute. The Amendment thus does not restrict, or

govern in any way, the spending of these tax revenues. We agree with the County that the

complaint fails to state a claim for a constitutional violation and was properly dismissed.

¶ 168 CONCLUSION

¶ 169 The judgment of the circuit court is affirmed.

¶ 170 Affirmed.

51 1-19-0396

No. 1-19-0396

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CH- 2992; the Hon. Peter Flynn, Judge, presiding.

Attorneys Gino L. DiVito, John M. Fitzgerald, and Amanda N. Catalano, for of Tabet DiVito & Rothstein LLC, of Chicago, for appellants. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil for Stein, Martha Victoria Jimenez, and James Beligratis, Assistant Appellee: State’s Attorneys, of counsel), for appellee.