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

2022 IL 127126

204 N.E.3d 189

461 Ill.Dec. 431

ILLINOIS ROAD AND TRANSPORTATION BUILDERS ASSOCIATION et al., Appellants,

v.The COUNTY OF COOK, Appellee.

Docket No. 127126

Supreme Court of Illinois.

Filed April 21, 2022.

Gino L. DiVito, John M. Fitzgerald, Amanda N. Catalano, and Johnathan S. Kim, of Tabet DiVito & Rothstein LLC, of Chicago, for appellants.

Kimberly M. Foxx, State's Attorney, of Chicago (Cathy McNeil Stein, Amy Crawford, and Nicolette Koutas, Assistant State's Attorneys, of counsel), for appellee.

Michael T. Reagan, of Ottawa, for amici curiae Jim Durkin et al.

Chet A. Kelly, of Kelly & Kelley, LLC, of Belleville, for amicus curiae Jay Hoffman.

David P. Hennessy and Anthony D. Schuering, of Brown, Hay and Stephens, LLP, of Springfield, for amicus curiae Illinois Chamber of Commerce.

Dale D. Pierson and James Connolly Jr., of International Union of Operating Engineers, Local 150, of Countryside, and Terrance B. McGann, of McGann, Ketterman & Rioux, of Chicago, for amici curiae Chicago Regional Council of Carpenters et al.

Marc R. Poulos, Melissa L. Binetti, Kara M. Principe, and Joseph P. Sweeney, of Indiana, Illinois, Iowa Foundation for Fair Contracting, of Countryside, and Jon Rosenblatt, of G&R Public Law and Strategies, of Chicago, for amici curiae Chicago Area Laborers-Employers Cooperation and Education Trust et al.

Celia Meza, Corporation Counsel (Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), and Elizabeth Attard, of Louis F. Cainkar, Ltd., both of Chicago, and Cynthia S. Grandfield, of Del Gado Law Group, LLC, of Berwyn, for amici curiae City of Chicago et al.

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

¶ 1 In 2016, an amendment shielding transportation funding from other uses was added to the state revenue article of the Illinois Constitution ( Ill. Const. 1970, art. IX, § 11 (a)), commonly known as the transportation taxes and fees lockbox amendment or safe roads amendment (Amendment). The Amendment safeguards proceeds from transportation-related bond proceeds, taxes, fees, excises, and license taxes to ensure that such proceeds are only used for transportation-related purposes. See id. In 2018, plaintiffs, a coalition of contracting firms in the public transportation construction and design industry,¹ filed suit in the circuit court of Cook County for declaratory and injunctive relief against the County of Cook (County), asserting that the County was impermissibly diverting revenues generated from six transportation-related ordinances that, pursuant to the Amendment, should have been used only toward certain delineated transportation-related purposes. Following the County's filing of a combined motion to dismiss under section 2-619.1 of the Code of Civil Procedure ( 735 ILCS 5/2-619.1 (West 2018) ), the circuit court dismissed the complaint, finding that plaintiffs lacked standing and that the complaint failed to state a violation of the Amendment. The appellate court reversed on the issue of standing but affirmed the circuit court's determination that no violation of the Amendment had been stated, albeit for different reasons. 2021 IL App (1st) 190396, ¶ 4, 451 Ill.Dec. 491, 183 N.E.3d 948. We allowed plaintiffs’ petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Oct. 1, 2020).

¶ 2 BACKGROUND

¶ 3 In 2016, nearly 80% of Illinois voters voted to amend the Illinois Constitution of 1970. As a result, section 11, titled "Transportation funds," was added to the state revenue article. See Ill. Const. 1970, art. IX, § 11. In essence, the Amendment provides that money generated from taxes, fees, excises, and license taxes on transportation infrastructure or operations shall only be spent on transportation purposes. Id. § 11 (a).

¶ 4 On March 6, 2018, plaintiffs, self-described contracting firms in the public transportation construction and design industry, filed suit for declaratory and injunctive relief against the County. All parties agree that the County is a home-rule unit pursuant to article VII, section 6, of the Illinois Constitution of 1970. Id. art. VII, § 6(a). Plaintiffs alleged that the County was violating the Amendment by diverting "revenue from transportation-related taxes and fees to the County's Public Safety Fund" and impermissibly spending the revenue on non-transportation-related purposes. Six sources of revenue allegedly being unconstitutionally diverted away from transportation uses were identified: (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 Cook County Code of Ordinances § 74-595 et seq. (adopted Nov. 15, 2011)); (5) the Cook County Wheel Tax on Vehicles Ordinance (see Cook County Code of Ordinances § 74-550 et seq. (adopted May 21, 2020)); and (6) the Cook County Parking Lot and Garage Operations Tax Ordinance (see Cook County Code of Ordinances § 74-510 et seq. (adopted July 17, 2013)). These taxes will be referred to collectively as the "Cook County Transportation Taxes." See 2021 IL App (1st) 190396, ¶ 8, 451 Ill.Dec. 491, 183 N.E.3d 948.

¶ 5 Plaintiffs’ prayer for relief seeks the following: entry of declaratory judgment that the County's diversion of revenue from the Cook County transportation revenue ordinances to undifferentiated costs within the Public Safety Fund is unconstitutional; that plaintiffs be awarded preliminary and permanent injunctive relief to enjoin the County from diverting revenue derived from the Cook County transportation revenue ordinances to any purpose other than those provided in subsection (b) and (c) of the Amendment; to mandate that the County restore all such diverted revenue; to order the County to provide plaintiffs a line-item accounting of how the County allocates or appropriates revenue derived from the Cook County transportation revenue ordinances; the award of reasonable attorney fees to plaintiffs; and any such other award and further relief as deemed proper.

¶ 6 The County filed a motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure. 735 ILCS 5/2-619.1 (West 2018). Specifically, the County asserted that the complaint should be dismissed pursuant to section 2-619 because plaintiffs lack standing and because, pursuant to section 2-615, "allocation of revenue to the Public Safety Fund is proper under the Amendment's legislative history and ballot summary." See id. §§ 2-615, 2-619. The circuit court dismissed the complaint, finding that plaintiffs lacked standing and that the complaint failed to state a constitutional violation.

¶ 7 The appellate court disagreed as to the issue of standing, concluding that plaintiffs had established associational standing. 2021 IL App (1st) 190396, ¶ 56, 451 Ill.Dec. 491, 183 N.E.3d 948. The court thus did not reach plaintiffs’ alternative contention that they had standing as taxpayers. Id. However, the court affirmed the circuit court's section 2-615 dismissal. Id. ¶ 167. After finding the language of the Amendment ambiguous, the court looked to extrinsic aids, namely, legislative debates, the Secretary of State's published explanations of the Amendment that were sent to Illinois voters (ballot summary) (see Ill. Const. 1970, art. XIV, § 2 (b)), and the Transportation Funding Protection Act (see Pub. Act 101-32 (eff. June 28, 2019) (adding 30 ILCS 178/5-10 )). 2021 IL App (1st) 190396, ¶¶ 156-57, 451 Ill.Dec. 491, 183 N.E.3d 948. The legislative debates, according to the court, demonstrated that "[t]he 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." Id. ¶ 143. Further, the language contained in the ballot summary better comported with the County's position because, according to the court, plaintiffs’ interpretation would result in alteration of home-rule powers. Id. ¶¶ 149-50.

¶ 8 We allowed plaintiffs’ petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Oct. 1, 2020). We also allowed the following parties to file amicus curiae briefs: Representatives Jim Durkin and Ryan Spain; Representative Jay Hoffman; the Illinois Chamber of Commerce; the International Union of Operating Engineers, Local 150, AFL-CIO, et al. ; the Indiana, Illinois, Iowa Foundation for Fair Contracting, et al. ; and the City of Chicago, City of Berwyn, and Village of Bridgeview. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 9 ANALYSIS

¶ 10 This appeal comes to this court following the circuit court's dismissal of plaintiffs’ complaint pursuant to section 2-619.1. See 735 ILCS 5/2-619.1 (West 2018). "Section 2-619.1 allows a party to file a combined section 2-619 and 2-615 motion to dismiss." Carr v. Koch , 2012 IL 113414, ¶ 27, 367 Ill.Dec. 1, 981 N.E.2d 326. "A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint [citation], while a section 2-619 motion to dismiss admits the sufficiency of the complaint, but asserts an affirmative defense or other matter that avoids or defeats that claim [citation]." Id. Though plaintiffs only seek review of the section 2-615 issue, i.e. , whether they have asserted a claim for a constitutional violation of the Amendment, the County's request for cross-relief requires our consideration of the section 2-619 issue, which is whether plaintiffs have standing. We review a motion to dismiss under either section 2-615 or section 2-619 de novo. Id. We turn first to the issue of standing.

¶ 11 I. Standing

¶ 12 Because it is an affirmative defense, it is defendant's burden to plead and prove lack of...