A coalition of Illinois road contractors, suppliers and engineering companies has appealed a state appellate court ruling that says the Safe Roads Amendment, passed by a majority of voters in 2016, applies only to the state and not to the taxes and other revenue collected by home-rule counties and municipalities.

The language of the Safe Roads Amendment, passed by the voters by a nearly four-to-one margin in November 2016, requires funds generated from transportation to be used on "construction, reconstruction, or maintenance of highways, roads, streets, bridges, mass transit, inner city passenger rail, ports, airports, or other forms of transportation."

Dollars received from gasoline taxes, transportation bonds, fees for the registration of motor vehicles and other transportation revenue sources cannot be used for other government spending, according to the amendment. But the appellate court said the amendment does not define how money can be spent by home-rule units of government, only the state itself.

“The Amendment protects from diversion of those revenues from transportation-related taxes whose expenditure is authorized by statute. The Amendment does not sequester revenues from transportation-related taxes spent by home-rule units pursuant to their independent constitutional spending power,"  a three-justice panel of the First District Illinois Appellate Court, based in Chicago, wrote in its March 31 ruling.

The plaintiffs appealing the decision include the Illinois Road and Transportation Builders Association, the Federation of Women Contractors, the Illinois Association of Aggregate Producers, the Associated General Contractors of Illinois, the Illinois Asphalt Pavement Association, the Illinois Ready Mixed Concrete Association, the Great Lakes Construction Association, the American Council of Engineering Companies Illinois Chapter, the Chicagoland AGC, the Underground Contractors Association of Illinois and the Illinois Concrete Pipe Association.

The defendant is Cook County, the largest county in the state by population, which has used transportation tax and fee proceeds for public safety, including funding the office of the Cook County Sheriff. It has also used transportation funds for other general operating expenses since 2016. The road builders' coalition's appeal argues the appellate court's ruling was incorrect because it relies on arguments made in the general assembly and a section of the amendment that does not address how funds can be spent. It also argues that, if the ruling stands, any local government would be all but free to ignore the so-called lockbox amendment.

"The purpose of this amendment was very clear," John Fitzgerald, an attorney with Tabet DiVito & Rothstein representing the transportation coalition, says. "Transportation tax revenue must be spent on transportation purposes that is, in our view, what the amendment states in very clear language and that was why the voters approved it with nearly 80% of the vote statewide."

Fitzgerald also said while there is no mention of any exemption for home-rule counties and municipalities in the amendment, there is an exemption for federal taxes in another section that says federal funds may be spent for any purposes authorized by federal law.

"If the drafters wanted to include an exemption for home rule units, or for home rule taxes, they would have said so very clearly," he says, "and they did not."

The office of Cook County State's Attorney Kim Foxx, which is defending the county in the matter, said in a statement, "we believe that the appellate court reached the correct result here and are confident that its decision will stand."

Fitzgerald said the Illinois Supreme Court would likely decide by this fall whether the appeal will be granted. Oral arguments on any potential appeal would likely follow in the first quarter of 2022. Although the matter is based entirely on state law, whatever its eventual resolution is could have impacts on other states that have transportation lockbox amendments with similar language such as Connecticut, Maryland, New Jersey, Louisiana and Wisconsin.