Ill. Rd. & Transp. Builders Ass'n, Fed'n of Women Contractors, Ill. Ass'n of Aggregate Producers, Associated Gen. Contractors of Ill., Ill. Asphalt Pavement Ass'n, Ill. Ready Mixed Concrete Ass'n, Great Lakes Constr. Ass'n, Am. Council of Eng'g Cos. (Illinois Chapter), Chicagoland Associated Gen. Contractors, Underground Contractors Ass'n of Ill., & Ill. Concrete Pipe Ass'n v. Cnty. of Cook
| Decision Date | 03 March 2021 |
| Docket Number | 1-19-0396 |
| Parties | 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. |
| Court | United States Appellate Court of Illinois |
Gino L. DiVito, John M. Fitzgerald, and Amanda N. Catalano, of Tabet DiVito & Rothstein LLC, of Chicago, for appellants.
Kimberly M. Foxx, State's Attorney, of Chicago (Cathy McNeil Stein, Martha Victoria Jimenez, and James Beligratis, Assistant State's Attorneys, of counsel), for appellee.
¶ 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" "(Amendment) ( Ill. Const. 1970, art. IX, § 11 (amended 2016)). 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.
¶ 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 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:
¶ 8 For ease of references, we will refer to these taxes listed above, collectively, as the "Cook County Transportation Taxes."
¶ 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.
¶ 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, 242 Ill.Dec. 79, 720 N.E.2d 1034 (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, 293 Ill.Dec. 606, 828 N.E.2d 1104 (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 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, 294 Ill.Dec. 594, 831 N.E.2d 544 (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, 226 Ill.Dec. 627, 685 N.E.2d 1370 (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, 284 Ill.Dec. 294, 809 N.E.2d 1240 (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, 293 Ill.Dec. 606, 828 N.E.2d 1104. 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, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). See International Union , 215 Ill. 2d at 51-52, 293 Ill.Dec. 606, 828 N.E.2d 1104.
¶ 20 In Hunt , 432 U.S. at 343, 97 S.Ct. 2434, 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 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, 293 Ill.Dec. 606, 828 N.E.2d 1104 (quoting Warth v. Seldin , 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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, 284 Ill.Dec. 294, 809 N.E.2d 1240. 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 P...
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