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Judge: State constitution doesn't force Cook County to spend $250M more on roads, transport projects

Thursday, February 28, 2019
Cook County Rrecord
by Jonathan Bilyk |

Saying the state’s newest constitutional amendment doesn’t reduce Cook County’s home rule powers to tax and spend, a Cook County judge has rejected a bid by a coalition of road building contractors and others to force the county to spend $250 million more on transportation projects.

On Feb. 22, Cook County Circuit Judge Peter Flynn granted the county’s motion to dismiss the lawsuit brought by the road builders’ coalition.

The lawsuit had challenged the county’s authority to reroute hundreds of millions dollars to the county’s Public Safety Fund, when the coalition said the so-called Safe Roads Amendment requires the county to spend on roads, bridges and other transportation-related infrastructure.

Judge Flynn, however, said the coalition’s interpretation of the Safe Roads Amendment’s mandates is flawed, as the drafters of the amendment did not craft the amendment in a way to reduce the ability of the county and other so-called “home rule” units of local government to allocate resources as local leaders deemed necessary.

“… The Constitution itself contains … a very specific means of limiting the powers of home rule units,” Judge Flynn wrote. “The Safe Roads Amendment simply does not use that means. Its drafters could have done so. They did not. Enough said.

“What is more, the drafters manifestly did not intend to do so. They themselves disclaimed, in the ballot summary given to voters, any intent to impair home rule powers. In this instance, their actions and their words coincided perfectly.”

The judge said the plaintiffs’ request represented a bridge too far, as Flynn said the power to decide how to spend money or which construction projects to pursue, should be left with lawmakers in Springfield or the Cook County Board in Chicago.

“The proper recourse for the relief plaintiffs seek here … is ‘in a legislative forum rather than in the courts,’” Flynn wrote, citing the Illinois Supreme Court’s 1996 decision in Committee for Educational Rights v Edgar. “If the plaintiffs here with to achieve additional ‘authorized by law’ earmarks, the General Assembly is the forum.

“If they wish to have more contract proposals on which to bid (and thereby compete among themselves), the Cook County Board is the forum.

“In neither instance, however, is the judicial system the appropriate arbiter.”

The case had landed in Cook County Circuit Court nearly a year ago.

The complaint centered on the county’s use of revenue from six county taxes, including four automobile-related taxes which the complaint says the county expected to collectively bring in nearly $240 million in fiscal year 2017.

The county has used much of that money to fund public safety operations and projects at various county offices associated with the criminal justice system.

But the road builders coalition said the money should be spent directly on roads and other transportation infrastructure projects under the Safe Roads Amendment, which voters overwhelmingly approved in 2016.

Plaintiffs in the action include the Illinois Road and Transportation Builders Association; the Federation of Women Contractors; the 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.

They argued they should be allowed to bring the lawsuit because the county’s alleged improper use of the tax funds deprived their members of the opportunity to bid for road and transportation projects the coalition says would have otherwise been funded.

In response, the county asked the judge to dismiss the lawsuit, asserting the Safe Roads Amendment does not diminish the county’s home rule powers – or broad authority to conduct its own affairs – granted under the Illinois state constitution. The county said that includes its powers to distribute its transportation dollars to meet county needs, without fear of interference from road builders and others demanding the money be paid to contractors.

“… Such an interpretation would subject Illinois’ thousands of local governments to potential suit at any time … by transportation contractors and the like with an appetite for more construction contracts who will demand a ‘line-item accounting’ of how they spend their money, notwithstanding the time, resources, upheaval and inconvenience such demands would cause,” the county wrote in a memorandum in support of its dismissal request last May.

Judge Flynn sided with the county’s interpretation of the constitution.

Even if he were to grant the contractors’ request, Flynn noted there would be no guarantee their members would reap financial benefits from the county’s transportation budget. He further said it was beyond the power of his court to order the county to hire any contractor or launch any construction projects.

The judge further noted home rule powers can only be limited by following provisions specifically spelled out in Article VII of the state constitution. Flynn said the Safe Roads Amendment specifically does not amend that language.

Further, he pointed the ballot summary provided to voters in 2016, which specifically stated “the Safe Roads Amendment ‘does not, and is not intended to … alter home rule powers granted under the Constitution.”

“The Court concludes that the County is correct in arguing the Safe Roads Amendment does not negate the County’s home rule powers,” Flynn wrote.

The road builders are represented by attorneys John M. Fitzgerald and Amanda N. Catalano, of the firm of Tabet DiVito & Rothstein LLC, of Chicago.

Michael Sturino, president and CEO of The Illinois Road and Transportation Builders Association, who had spoken for the plaintiffs’ coalition previously, did not reply to emailed questions from The Cook County Record seeking comment on the decision, including whether the coalition will appeal.

Becky Schlikerman, spokesperson for Cook County Board President Toni Preckwinkle, said the county was “pleased with the court’s decision recognizing the county’s home rule power and taxing authority.”

The county, she said in a prepared statement, “will continue its work to foster strategic investments in the transportation system to make Cook County an even more attractive place to live and work.”

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