A.B.A.T.E. Of Ill. Inc v. Giannoulias

• Decision Date: 03 May 2010
• Docket Number: No. 4-09-0069.,4-09-0069.
• Citation: 401 Ill.App.3d 326,341 Ill.Dec. 109,929 N.E.2d 1188
• Parties: A.B.A.T.E. OF ILLINOIS, INC., and K. Gene Beenenga, Plaintiffs-Appellants,v.Alexi GIANNOULIAS, Treasurer, State of Illinois; Daniel W. Hynes, Comptroller, State of Illinois; and Pat Quinn, Governor, State of Illinois, in Their Official Capacities, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

401 Ill.App.3d 326

929 N.E.2d 1188

341 Ill.Dec. 109

A.B.A.T.E. OF ILLINOIS, INC., and K. Gene Beenenga, Plaintiffs-Appellants,v.Alexi GIANNOULIAS, Treasurer, State of Illinois; Daniel W. Hynes, Comptroller, State of Illinois; and Pat Quinn, Governor, State of Illinois, in Their Official Capacities, Defendants-Appellees.

No. 4-09-0069.

Appellate Court of Illinois,

Fourth District.

May 3, 2010.

George W. Tinkham, of Springfield, Rodney V. Taylor (argued), of Christopher & Taylor, of Indianapolis, and Matthew E. Franklin (argued), of Chatham, for appellants.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Paul Berks (argued), Assistant Attorney General, of counsel), for appellees.

Presiding Justice MYERSCOUGH delivered the opinion of the court:

Plaintiffs, A.B.A.T.E. of Illinois, Inc. (ABATE), and K. Gene Beenenga, appeal the trial court's order granting the motion of defendants Alexi Giannoulias, Daniel W. Hynes, and Pat Quinn for summary judgment and denial of their motion to reconsider. We affirm.

I. BACKGROUND

ABATE is an Illinois general not-for-profit corporation whose members are motorcycle enthusiasts. Beenenga is a member of ABATE and a motorcyclist.

Through Public Act 82-649, effective January 1, 1982 (Pub. Act 82-649, §§ 1 through 7, eff. January 1, 1982 (1981 Ill. Laws 3373-76)), the legislature enacted the Cycle Rider Safety Training Act (Act) (Ill.Rev.Stat.1981, ch. 95 1/2, pars. 801 through 807), which included a Cycle Rider Safety Training Fund (CRST Fund) (Ill.Rev.Stat.1981, ch. 95 1/2, par. 806). The Illinois Department of Transportation (Department) was given the “power, duty[,] and authority to administer [the] Act.” Ill.Rev.Stat.1981, ch. 95 1/2, par. 803. That version of section 6 stated the following with respect to deposits into the CRST Fund:

“To finance the Cycle Rider Safety Training program and to pay the costs thereof, the Secretary of State will hereafter deposit in the State Treasury an amount equal to $4.00 for each Annual Fee, and $2.00 for each Reduced Fee, for the registration of each motorcycle, motor driven cycle[,] and motorized pedalcycle processed by the Office of the Secretary of State during the preceding quarter, which amount the State Comptroller shall transfer quarterly to a special fund to be known as ‘The Cycle Rider Safety Training Fund’, which is hereby created and which shall be administered by the Department. Appropriations from the ‘Cycle Rider Safety Training Fund’ shall be made by the General Assembly only to the Department, and shall only be used for the expenses of the Department in administering the provisions of this Act, for funding of contracts with approved Regional Cycle Rider Safety Training Centers for the conduct of courses, or for any purpose related or incident thereto and connected therewith. Whenever the total of the amount currently in the Cycle Rider Safety Training Fund and current grants to the Department from the federal government for cycle rider safety training in Illinois exceed $1,200,000, the Department will notify the Governor and the Governor may notify the State Comptroller and State Treasurer of the amount to be transferred from the Cycle Rider Safety [Training] Fund to the Illinois Road Fund so that said total approximately equals $1,200,000, and, upon receipt of such notification, the State Comptroller shall transfer such amount to the Illinois Road Fund.” Ill.Rev.Stat.1981, ch. 95 1/2, par. 806.

In January 1992, the legislature amended the former version of section 6 of the Act when it enacted Public Act 87-838 (Pub. Act 87-838, § 6, eff. January 1, 1993 (1991 Ill. Laws 4782, 4810)). The new version became section 6 of the Act (625 ILCS 35/6 (West 1992)). Public Act 87-838 amended section 6 of the Act to allow funds in the CRST Fund to be transferred to the General Revenue Fund by adding the following paragraph to section 6 of the Act:

“In addition to any other permitted use of moneys in the Fund, and notwithstanding any restriction on the use of the Fund, moneys

in the Cycle Rider Safety Training Fund may be transferred to the General Revenue Fund as authorized by this amendatory Act of 1992. The General Assembly finds that an excess of money exists in the Fund. On February 1, 1992, the Comptroller shall order transferred and the Treasurer shall transfer $200,000 (or such lesser amount as may be on deposit in the Fund and unexpended and unobligated on that date) from the Fund to the General Revenue Fund.” 625 ILCS 35/6 (West 1992).

In December 1992, the legislature again amended section 6 of the Act when it overrode then Governor Jim Edgar's veto and passed House Bill 1129, which became Public Act 87-1217, effective January 1, 1993 (Pub. Act 87-1217, § 1, eff. January 1, 1993, (1216 Ill. Laws 3775, 3775-76)). Because Public Act 87-1217 substantially changed section 6, we include it in its entirety and emphasize what plaintiffs maintain are the substantive changes to section 6 of the Act that are of import to this case:

“To finance the Cycle Rider Safety Training program and to pay the costs thereof, the Secretary of State will hereafter deposit with the State Treasurer an amount equal to each annual fee and each reduced fee, for the registration of each motorcycle, motor driven cycle[,] and motorized pedalcycle processed by the Office of the Secretary of State during the preceding quarter as required in subsection (d) of Section 2-119 of the Illinois Vehicle Code [ (625 ILCS 5/2-119 (West 1992)) ], which amount the State Comptroller shall transfer quarterly to a trust fund outside of the State treasury to be known as the Cycle Rider Safety Training Fund, which is hereby created. In addition the Department may accept any federal, State, or private moneys for deposit into the Fund

and shall be used by the Department only for the expenses of the Department in administering the provisions of this Act, for funding of contracts with approved Regional Cycle Rider Safety Training Centers for the conduct of courses, or for any purpose related or incident thereto and connected therewith.” (Emphases added.) 625 ILCS 35/6 (West Supp.1993).

Effective June 20, 2003, the legislature enacted an act relating to budget implementation (hereinafter BIMP), Public Act 93-32 (2004 BIMP) (Pub. Act 93-32, § 50-5, eff. June 20, 2003 (2003 Ill. Legis. Serv. 400, 401 (West))), which amended the State Finance Act (30 ILCS 105/1 through 40 (West 2004)) (2004 State Finance Act). Relevant to this case are sections 8h (30 ILCS 105/8h (West 2004)), 8j (30 ILCS 105/8j (West 2004)), and 8.42 (30 ILCS 105/8.42 (West 2004)). These amendments authorized the Treasurer and Comptroller to transfer amounts from certain funds held by the State Treasurer, including the CRST Fund (30 ILCS 105/8.42 (West 2004)), and from additional amounts created through the increase of fees to the General Revenue Fund upon direction from the Director of the Bureau of the Budget. 30 ILCS 105/8h, 8j (West 2004).

Effective July 30, 2004, Public Act 93-839 (2005 BIMP) amended the State Finance Act yet again. Public Act 93-839 (Pub. Act 93-839, § 10-100, eff. July 30, 2004 (2004 Ill. Legis. Serv. 1381, 1407-08 (West))) amended section 8h of the State Finance Act to give the Governor the power to direct the Treasurer and Comptroller to transfer money from any fund held by the State Treasurer to the General Revenue Fund. 30 ILCS 105/8h (West Supp.2005).

Later, Governor Blagojevich issued “Fund Transfer Notifications” directing the transfer of money from many of the State's funds, including the CRST Fund, into the General Revenue Fund. Defendants admit that $1,205,600 was transferred from the CRST Fund to the General Revenue Fund pursuant to the 2004 BIMP.

On June 9, 2006, plaintiffs filed a motion for temporary restraining order, asking the trial court to restrain defendants (Judy Baar Topinka was Treasurer and Rod Blagojevich was Governor at the time) from transferring funds from the CRST Fund (and many other funds) to the General Revenue Fund. The trial court granted the temporary restraining order.

On June 12, 2006, plaintiffs filed a class-action suit for declaratory judgment mandamus, preliminary injunction, and permanent injunction against defendants barring the transfer of funds from a number of funds, including the CRST Fund, to the General Revenue Fund. In relevant part, plaintiffs alleged that the transfer of funds from the CRST Fund to the State's General Revenue Fund pursuant to Public Acts 93-32 and 93-839 were unenforceable because the transfers were inconsistent with the CRST Fund's “enabling statute” and the transfers violated several constitutional provisions. On July 28, 2006, the trial court denied the motion for preliminary injunction. In August 2006, defendant Hynes filed a motion to dismiss that the trial court denied.

On April 30, 2008, defendants filed a motion for summary judgment. On August 12, 2008, plaintiffs filed a cross-motion for summary judgment. On October 23, 2008, the trial court granted summary judgment in favor of defendants. The court granted the motion because “the BIMP's in question were passed after the current CRSTF Act was enacted. The intent of the legislature was clear, and the more recent legislation ( i.e., the BIMPs), it can be implied, repealed the statute in question, CRSTF.” Moreover, the court found it was apparent from the fact that the legislature acted to prohibit transfers from specific funds, but not the CRST Fund, that it intended the transfer from the CRST Fund to take place. On January 5, 2009, the trial court denied plaintiffs' motion to reconsider.

This appeal followed.

II. ANALYSIS

In this appeal, plaintiffs make two general arguments. Plaintiffs argue that because the monies in the CRST Fund are private, the legislature could not transfer the monies pursuant to the 2004 and 2005 BIMPs without violating the takings clauses of the Illinois and United States Constitutions. Plaintiffs...