Ill. Rd. & Transp. Builders Ass'n v. Cnty. of Cook

2022 IL App (1st) 221582

217 N.E.3d 1042

466 Ill.Dec. 766

ILLINOIS ROAD AND TRANSPORTATION BUILDERS ASSOCIATION, Federation of 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, Underground Contractors Association of Illinois, and Illinois Concrete Pipe Association, Plaintiffs-Appellants,

v.The COUNTY OF COOK, a Body Politic and Corporate, Defendant-Appellee.

No. 1-22-1582

Appellate Court of Illinois, First District, SECOND DIVISION.

Filed November 17, 2022

John M. Fitzgerald, Michael J. Grant, Amanda N. Catalano, Tae Y. Kim, of Tabet DiVito & Rothstein LLC, of Chicago, for appellants.

Kimberly M. Foxx, State's Attorney, of Chicago (Amy Crawford, Jonathon D. Byrer, Assistant State's Attorneys, of counsel); Kenneth S. Ulrich, David E. Morrison, Rachel C. Steiner, W. Kyle Walther, Stacey E. Petrek, of Goldberg Kohn Ltd., of Chicago, Special Assistant State's Attorneys, for appellee.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 In 2016, Illinois voters approved the "Safe Roads Amendment" to the Illinois Constitution, codified in article IX, section 11. See Ill. Const. 1970, art. IX, § 11. Broadly speaking, the amendment mandates that, when the government collects revenue from transportation-related fees and taxes, it may only spend that revenue for transportation-related purposes.

¶ 2 Plaintiffs sued Cook County, claiming that the County was violating the amendment by spending transportation-generated revenue for nontransportation purposes. See Illinois Road & Transportation Builders Ass'n v. County of Cook , 2022 IL 127126, ¶¶ 4-5, 461 Ill.Dec. 431, 204 N.E.3d 189. Cook County's principal response was that the amendment did not apply to home-rule units of local government such as Cook County, an argument that persuaded the circuit and appellate courts but not our supreme court. Id. ¶ 60.

The supreme court held that the amendment governed the spending of home-rule units like Cook County, too, and remanded the cause to the circuit court for further proceedings. Id. ¶ 62.

¶ 3 Back in the circuit court two months later—July 2022—plaintiffs moved for a preliminary injunction against the County, claiming that, in its upcoming budget for fiscal year 2023 (which begins on December 1, 2022), the County planned "to continue its longstanding practice of depositing revenues generated by the Cook County Transportation Taxes into the County's Public Safety Fund." The County had not yet passed budget legislation for fiscal year 2023, but plaintiffs pointed to the County's budget forecast documents to show that it intended to continue spending money in the same way it did before the supreme court's decision.

¶ 4 Plaintiffs sought an order "preliminarily enjoining the County from diverting revenue generated by the following taxes and fees to the Public Safety Fund or to any other non-transportation purpose in its Fiscal Year 2023 Budget: (i) the Cook County Home Rule County Use Tax; (ii) the Cook County Retail Sale of Gasoline and Diesel Fuel Tax; (iii) the Cook County New Motor Vehicle and Trailer Excise Tax; (iv) the Cook County Home Rule Use Tax for Non-Retailer Transfers of Motor Vehicles; (v) the Cook County Wheel Tax on Motor Vehicles; and (vi) the Cook County Parking Lot and Garage Operations Tax."

¶ 5 The County raised several arguments in response. As to plaintiffs’ likelihood of success on the merits, among other things, the County argued that "the Fiscal Year 2023 budget is being developed in light of the Supreme Court's recent ruling" and the County had "no intention of adopting a Fiscal Year 2023 budget that does not comply with the law." The County repeatedly pointed out that the budget process was "ongoing."

¶ 6 As to the issue of irreparable harm, the County more or less returned to this same theme, that the budget had not yet been implemented, so the motion was based on speculation: "Plaintiffs’ conjecture as to what the County may do in the future is insufficient to demonstrate a risk of irreparable harm."

¶ 7 In reply, plaintiffs argued that the County's preliminary budgeting documents were premised on an "unreasonable" interpretation of the amendment. While recognizing that they were concerned with "preliminary" budgeting, they claimed an injunction was necessary because the County had shown no intention of complying with the amendment.

¶ 8 The circuit court held a hearing. The parties presented testimony about the County's budgeting process and whether its preliminary budget documents complied with constitutional requirements. We need not delve deeply into that testimony, as we resolve this appeal on a more fundamental ground. Suffice it to say that the parties each presented opinion witnesses who had very different ideas about whether the County's budget plans would comply with the amendment.

¶ 9 The court denied the motion. On the likelihood of success on the merits, the court found that plaintiffs had failed to show that the County "will use Transportation Tax Revenues in FY23 in ways that violate the Amendment." As to risk of irreparable harm, the court found that any harm was "speculative" in light of plaintiffs’ failure to prove the County would spend the money inappropriately.

¶ 10 The day after the circuit court denied the motion for preliminary injunction—October 20, 2022—plaintiffs filed their notice of appeal. Briefing was expedited under Illinois Supreme Court Rule 307(c) (eff. Nov. 1, 2017) and concluded on November 16.

¶ 11 It bears noting that, during all this time from July to October 2022, and even by the time briefing before this court had concluded on November 16, the County had not yet enacted its budget ordinance for Fiscal Year 2023, which begins on December 1, 2022.

¶ 12 Given the circumstances, we have endeavored to release this opinion in as expedited a manner as possible.

¶ 13 One of the principal arguments of the County in opposition to plaintiffs’ motion is that plaintiffs are complaining about legislation that has not yet become law. It is on that point that we decide this appeal.

¶ 14 In their motion for preliminary injunction, plaintiffs predict that, based on budget forecasting documents for fiscal year 2023 produced by the County, "the County will continue to divert revenues generated from the Cook County Transportation Taxes to purposes other than transportation, as it did in Fiscal Years 2017-2022." Based on that prediction, plaintiffs pray for an order enjoining the County "from diverting revenue generated by the [certain enumerated] taxes and fees to the Public Safety Fund or to any other non-transportation purpose in its Fiscal Year 2023 Budget."

¶ 15 There are two interrelated problems with the relief plaintiffs request. The first is that a court cannot and should not review the constitutionality of pending legislation. There is no such thing as an unconstitutional bill—only an unconstitutional law. Until that legislation carries the force of law, the constitutionality of that legislation is not ripe for adjudication. See Smart Growth Sugar Grove, LLC v. Village of Sugar Grove , 375 Ill. App. 3d 780, 789, 313 Ill.Dec. 725, 873 N.E.2d 20 (2007) ; State ex rel. Althouse v. City of Madison , 79 Wis.2d 97, 255 N.W.2d 449, 456 (1977) ("A court cannot deal with the question of constitutionality until a law has been duly enacted and some person has been deprived of his constitutional rights by its operation." (Internal quotation marks omitted.)); Zukerberg v. District of Columbia Board of Elections & Ethics , 999 F. Supp. 2d 79, 86 (D.D.C. 2013) (no matter how likely bill's passage, "[t]he full legislative process must still be completed," resulting in enacted law, before question of constitutionality is ripe for review).

¶ 16 And for good reason: A piece of legislation is subject to change throughout the legislative process. It can be amended within the legislative body. It might pass, and it might fail to pass. And if it passes, in many cases, the chief executive may veto, amendatorily veto, or line-item veto that legislation. The legislative body may then accept or override any veto.

¶ 17 Indeed, here, it was not certain, in September and October 2022, that the Cook County Board of Commissioners would adopt a budget ordinance precisely in line with the budget recommendations submitted by the county board president and her various departments—or that it would adopt a budget ordinance at all. Nor, for that matter, was it certain that the county board president would approve in full any such ordinance, as the president has the authority to approve, veto, or line-item veto any appropriation ordinance presented to her. See 55 ILCS 5/2-6008 (West 2020). And the county board may then either acquiesce in that veto or override it by supermajority vote. Id.

¶ 18 None of this legislative action sets anything in stone until the legislative process, including any relevant executive action, is complete—and only then if that completed process results in an enacted law. Only an enacted statute (at the state level) or ordinance (at the local level) has the force of law, binding the government and affecting the rights of citizens. See Growth Sugar Grove , 375 Ill. App. 3d at 789, 313 Ill.Dec. 725, 873 N.E.2d 20. Only then may a court intervene to determine the constitutionality of that legislative act. Id.

¶ 19 Imagine were it otherwise. There are, for example, typically thousands of bills pending before the Illinois General Assembly at any given time at various stages of the process; at the moment of this writing, there are over 4000 Senate bills and nearly 6000 House bills pending. See Ill. Gen. Assem., https://www.ilga.gov/legislation/default.asp (last visited Nov. 21, 2022) [https://perma.cc/7X6S-T5LZ]...