Moline School District v. Quinn

2016 IL 119704

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 119704)

MOLINE SCHOOL DISTRICT NO. 40 BOARD OF EDUCATION, Appellee, v.

PATRICK QUINN, Governor, State of Illinois, et al. (Elliott Aviation, Inc., Appellant).

Opinion filed June 16, 2016.

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

Chief Justice Garman and Justices Freeman, Thomas, Kilbride, and Burke

concurred in the judgment and opinion.

Justice Theis dissented, with opinion.

OPINION

¶1 At issue on this appeal is the constitutionality of Public Act 97-1161 (eff. June

1, 2013), which amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West

2014)) to create an exemption from property taxes on leasehold interests and

improvements on real estate owned by the Metropolitan Airport Authority of Rock

Island County and used by a so-called fixed base operator (FBO) to provide

aeronautical services to the public. When the law was enacted, there was only one

FBO leasing land from the Metropolitan Airport Authority, Elliott Aviation, Inc.

The new law was specifically designed to provide a financial incentive for that

particular company to expand its operations at the Metropolitan Airport Authority’s

facilities rather than its operations in Des Moines, Iowa, which were not subject to

property tax.

¶2 Moline School District No. 40 Board of Education (the School District), which

faced losing more than $150,000 per year in tax revenue as a result of the

exemption for Elliott Aviation, brought an action for declaratory and injunctive

relief in the circuit court of Rock Island County to block implementation of the new

law on the grounds that it violates various provisions of the Illinois Constitution,

including the “special legislation” clause of article IV, section 13 (Ill. Const. 1970,

art. IV, § 13). On cross-motions for summary judgment, the circuit court rejected

the School District’s challenge to the law and concluded that it is constitutional.

The appellate court reversed and remanded with directions, holding that the law

contravenes the article IV, section 13 prohibition against special legislation. 2015

IL App (3d) 140535. Elliott Aviation appealed to our court as a matter of right. Ill.

S. Ct. R. 317 (eff. July 1, 2006). For the reasons that follow, we affirm the appellate

court’s judgment.

¶3 BACKGROUND

¶4 Elliott Aviation is what is known in the aviation industry as a fixed based

operator, or FBO. FBOs are commercial businesses allowed to operate at airports

for the purpose of supplying support services to general aviation aircraft, i.e., those

not operated by commercial airlines, large charters, or the military, and to the pilots

and passengers of such aircraft. Typical services provided by FBOs include fueling,

hangaring, aircraft maintenance and repair, aircraft rental, restrooms, rest areas,

and facilities for conferences and flight planning. Numerous FBOs operate in the

State of Illinois, which is home to 19 other airport authorities in addition to the

Metropolitan Airport Authority of Rock Island County (the MAA).

¶5 Elliott Aviation was founded in the 1930s and has three FBO operations in the

Midwest: Moline, Illinois; Des Moines, Iowa; and Minneapolis, Minnesota. The

Moline location, which has 229 employees, is located on the grounds of the Quad

City International Airport (Quad City). Elliott Aviation does not own either the

land or the buildings where it conducts its business there, although it paid for the

buildings to be constructed. Both the real estate and the improvements are owned

by the MAA, which leases them to the company. Although the MAA itself is not

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required to pay property tax, Illinois has assessed property taxes on airport property

leased to FBOs, and Elliott Aviation has been required to pay property tax on the

FBO it operates at the Quad City airport in Moline.

¶6 Several years ago, Elliott Aviation made known its interest in expanding its

operations, either in Moline or at its Des Moines, Iowa, location. Cost was a factor,

and one difference between these two possible options was that the company’s

leasehold interests in its Iowa location were not subject to real estate taxes.

¶7 An economic impact analysis conducted by the Quad Cities Chamber of

Commerce indicated that expansion at the Moline facility could be expected to

create numerous new high-paying jobs and bring millions of dollars in revenue into

Rock Island County. To provide an incentive for Elliott Aviation to pursue the

Moline option, the Chamber of Commerce asked a local state legislator to support

legislation that would exempt the company’s leasehold interests at the Quad City

airport from property tax. The result was House Bill 4110. That legislation was

ultimately enacted into law as Public Act 97-1161, the legislation challenged in this

case. It amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2014)) to

provide, in pertinent part, that “[i]f property of the Metropolitan Airport Authority

of Rock Island County is leased to a fixed base operator that provides aeronautical

services to the public, then those leasehold interests and any improvements thereon

are exempt [from taxation].” 35 ILCS 200/15-160(c) (West 2014).

¶8 Legislative debates on House Bill 4110 were clear and unambiguous as to the

law’s purpose: to provide property tax relief for Elliott Aviation so that it would

have an incentive to expand its operations at the Moline location, rather than at a

location in Iowa or some other state, and thereby improve the local economy. See

97th Ill. Gen. Assem., House Proceedings, Mar. 29, 2012, at 135-42. Equally clear

was that the General Assembly did not want to extend the same property tax relief

to any other operator at any other Illinois airport. An effort was made to amend the

legislation to extend the same favorable tax treatment to FBO leases at the Lansing

Municipal Airport in Cook County, but that effort was rebuffed. When House Bill

4110 was signed into law by the Governor as Public Act 97-1161, it benefited a

solitary company, Elliott Aviation, at a single airport, Quad City in Moline.

¶9 Prior to enactment of Public Act 97-1161, Elliott Aviation’s annual property

tax bill included more than $150,000 per year for Moline School District No. 40.

With passage of the new law and creation of the new exemption, the School District

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faced losing all of that tax revenue. Because there was no sunset provision in the

law, the loss would be recurrent and permanent.

¶ 10 The School District, which felt that it could ill afford the loss in revenue,

responded by filing an action in the circuit court of Rock Island County to have the

law declared unconstitutional and to enjoin its enforcement. Named as defendants

were numerous governmental entities and officials, including the Governor, the

Director of Revenue, and the local tax authorities.

¶ 11 The School District’s complaint contained four counts. Count I alleged that

Public Act 97-1161 violates the special legislation clause of the Illinois

Constitution, which prohibits the General Assembly from passing a “special or

local law when a general law is or can be made applicable.” Ill. Const. 1970, art. IV,

§ 13. Count II sought to have the law invalidated on the grounds that it violates

article I, section 2, of the Illinois Constitution, which provides that “[n]o person

shall be deprived of life, liberty or property without due process of law nor be

denied the equal protection of the laws.” Ill. Const. 1970, art. I, § 2. Count III

asserted that the statute is fatally infirm because it offends the requirement in our

State’s constitution that “[e]xcept as otherwise provided in this Section, taxes upon

real property shall be levied uniformly by valuation ascertained as the General

Assembly shall provide by law.” Ill. Const. 1970, art. IX, § 4(a). Finally, count IV

alleged that the statute was invalid and could not be enforced because it was

incompatible with the requirement in article IX, section 6, of the Illinois

Constitution of 1970 that “[t]he General Assembly by law may exempt from

taxation only the property of the State, units of local government and school

districts and property used exclusively for agricultural and horticultural societies,

and for school, religious, cemetery and charitable purposes.” Ill. Const. 1970, art.

IX, § 6.

¶ 12 The law was set to take effect on June 1, 2013. Before that date arrived,

however, the School District sought and obtained a preliminary injunction to block

the statute’s implementation pending final resolution of the case. Shortly thereafter,

the School District filed a motion for summary judgment pursuant to section

2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2014)). At this

point, Elliott Aviation, which had not yet been named a party, was granted leave to

intervene. It objected to the School District’s summary judgment motion and filed

its own cross-motion for summary judgment. Following a hearing, the circuit court

entered a detailed order which rejected each of the School District’s constitutional

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challenges to Public Act 97-1161, found the statute to be constitutional, denied the

School District’s motion for summary judgment, granted Elliott Aviation’s

cross-motion for summary judgment, and dissolved the preliminary injunction it

had previously entered.

¶ 13 After unsuccessfully seeking reconsideration by the circuit court, the School

District appealed. In a published opinion, the appellate court unanimously

concluded that Public Act 97-1161 violated the article IV, section 13 prohibition

against special legislation (Ill. Const. 1970, art. IV, § 13). It therefore reversed the

circuit court’s judgment and remanded with instructions for the circuit to enter

summary judgment in favor of the School District, to deny Elliott Aviation’s

motion for summary judgment, and to address the School District’s request for

permanent injunctive relief. Because it found the statute to be unconstitutional

under article IV, section 13 (Ill. Const. 1970, art. IV, § 13), the appellate court had

no need to reach and did not address whether the statute was also fatally infirm

under the other constitutional provisions invoked by the School District. 2015 IL

App (3d) 140535, ¶¶ 30-31. The matter is now before us for review on Elliott

Aviation’s appeal as a matter of right pursuant to Illinois Supreme Court Rule 317

(eff. July 1, 2006).

¶ 14 ANALYSIS

¶ 15 The sole issue on this appeal is whether the appellate court erred when it

concluded that Public Act 97-1161 is unconstitutional. The constitutionality of a

statute is a question of law that we review de novo. Empress Casino Joliet Corp. v.

Giannoulias, 231 Ill. 2d 62, 69 (2008). De novo review is also appropriate here

because the case was decided through summary judgment. Pielet v. Pielet, 2012 IL

112064, ¶ 30.

¶ 16 In undertaking our review, we begin with the familiar principle that statutes

carry a strong presumption of constitutionality. A party claiming that a statute is

unconstitutional bears the burden of establishing the statute’s constitutional

infirmity. This court has a duty to uphold the constitutionality of a statute if it is

reasonably possible to do so. Elementary School District 159 v. Schiller, 221 Ill. 2d

130, 148-49 (2006).

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¶ 17 As noted earlier, the appellate court invalidated Public Act 97-1161 on the

grounds that it violated article IV, section 13, of the Illinois Constitution of 1970

(Ill. Const. 1970, art. IV, § 13), popularly known as the special legislation clause.

That provision states:

“The General Assembly shall pass no special or local law when a general

law is or can be made applicable. Whether a general law is or can be made

applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV,

§ 13.

¶ 18 The special legislation clause prohibits the General Assembly from conferring a

special benefit or privilege upon one person or group of persons and excluding

others that are similarly situated. Big Sky Excavating, Inc. v. Illinois Bell Telephone

Co., 217 Ill. 2d 221, 235 (2005). Its purpose, as we have consistently held, is to

prevent arbitrary legislative classifications that discriminate in favor of a select

group without a sound, reasonable basis. Best v. Taylor Machine Works, 179 Ill. 2d

367, 391 (1997).

¶ 19 The clause has deep roots in our constitutional jurisprudence. It originally

appeared in the nineteenth century in response to the General Assembly’s past

abuse of the legislative process through the grant of special charters for various

economic interests. It is predicated in part on the conviction that governments

should establish and enforce general principles applicable to all their citizens and

not enrich particular classes of individuals at the expense of others, that “one class

or interest should not flourish by the aid of government, whilst another is oppressed

with all the burdens.” Id. at 391-92 (quoting I Debates and Proceedings of the

Constitutional Convention of the State of Illinois 578 (statements of Delegate

Anderson)).

¶ 20 The first version of the special legislation clause was set forth in section 22 of

article IV of the 1870 Constitution (Ill. Const. 1870, art. IV, § 22). That version

contained an extensive list of specific categories in which the General Assembly

was prohibited from passing a local or special law. While section 22 was in effect,

the General Assembly was generally the final authority for determining whether a

general law could be made applicable. When the 1970 Constitution was adopted,

that list was eliminated. The substantive principles applicable to the prohibition

against special legislation remain unchanged, but now, the issue of “whether a

general law is or can be made applicable is specifically provided to be a matter for

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judicial determination.” In re Belmont Fire Protection District, 111 Ill. 2d 373, 378

(1986).

¶ 21 What constitutes a general law and what constitutes a special law was recently

revisited by this court in Board of Education of Peoria School District No. 150 v.

Peoria Federation of Support Staff, Security/Policeman’s Benevolent & Protective

Ass’n Unit No. 114, 2013 IL 114853. Referencing past precedent, we noted in that

case that laws are considered “general” “when alike in their operation upon all

persons in like situation,” and that they are “special” if they impose a particular

burden or confer a special right, privilege, or immunity upon only a portion of the

people of our State. (Internal quotation marks omitted.) Id. ¶ 48.

¶ 22 Article IV, section 13, of the Illinois Constitution (Ill. Const. 1970, art. IV,

§ 13) does not impose a blanket prohibition on all special laws. By its terms, it only

prohibits the passage of a “special or local law when a general law is or can be

made applicable.” (Internal quotation marks omitted.) Board of Education of

Peoria School District No. 150, 2013 IL 114853, ¶ 55; Elementary School District

159 v. Schiller, 221 Ill. 2d at 154. Accordingly, a law does not automatically run

afoul of the prohibition against special legislation merely because it affects only

one class of entities and not another. Rather, the statute must confer on a person,

entity, or class of persons or entities a special benefit or exclusive privilege that is

denied to others who are similarly situated. Big Sky Excavating, Inc., 217 Ill. 2d at

236. If an entity is uniquely situated, the special legislation clause will not bar the

legislature from enacting a law tailored specifically to address the conditions of that

particular entity. Board of Education of Peoria School District No. 150, 2013 IL

114853, ¶ 55.

¶ 23 In assessing whether a statute violates the prohibition against special

legislation, courts apply a two-part analysis. First, they must determine whether the

statutory classification at issue discriminates in favor of a select group. If it does,

then they must go on to consider whether the classification is arbitrary. Big Sky

Excavating, Inc., 217 Ill. 2d at 235.

¶ 24 A special legislation challenge is generally judged under the same standards

applicable to an equal protection challenge. If a law does not affect fundamental

rights or make a suspect classification, and there is no contention that Public Act

97-1161 does, the appropriate measure of its constitutionality is the rational basis

test, which asks whether the statutory classification is rationally related to a

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legitimate state interest. Crusius v. Illinois Gaming Board, 216 Ill. 2d 315, 325

(2005). “The judgments made by the legislature in crafting a statute are not subject

to courtroom fact-finding and may be based on rational speculation unsupported by

evidence or empirical data.” Big Sky Excavating, Inc., 217 Ill. 2d at 240. “If any set

of facts can be reasonably conceived that justify distinguishing the class to which

the statute applies from the class to which the statute is inapplicable, then the

General Assembly may constitutionally classify persons and objects for the

purpose of legislative regulation or control, and may enact laws applicable only to

those persons or objects.” Id. at 238.

¶ 25 Public Act 97-1161, the law challenged in this case, clearly discriminates in

favor of a select group, as the appellate court correctly held. 2015 IL App (3d)

140535, ¶ 24. By its terms, the law provides property tax relief only for FBOs

providing aeronautical services to the public at the MAA’s Quad City International

Airport, and there is only one of those, Elliott Aviation. No other FBO providing

aeronautical services to the public at any other Illinois airport was given similar

favorable treatment, and under the law, no other FBO providing aeronautical

services to the public at any other Illinois airport has the opportunity to ever obtain

similar tax treatment.

¶ 26 The real question in this case centers on the second step of the special

legislation inquiry: whether the classification granting preferential tax treatment to

FBOs leasing property from the MAA is arbitrary, i.e., whether it is rationally

related to a legitimate state interest. The appellate court concluded that it is not. Id.

¶¶ 25-29. We agree.

¶ 27 The justification for the tax exemption conferred by Public Act 97-1161 was

clear and specific: it was to induce Elliott Aviation to undertake its contemplated

expansion in Illinois rather than in Iowa in the hope that the expansion would create

additional jobs and thereby boost the local economy in Rock Island County.

Encouraging Illinois businesses to expand in Illinois and facilitating economic

growth of our communities are unquestionably legitimate functions of state

government. As the appellate court correctly pointed out (id. ¶ 26), however, there

was no requirement in the law that Elliott Aviation actually use the tax savings to

expand in Illinois. If the statute were allowed to take effect, the company would be

entirely free to devote the money it saved on taxes to any purpose it chose,

including expanding in Iowa. That is good news for Elliott Aviation. It is not

necessarily such good news for anyone else. If the company elected not to reinvest

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in Rock Island County, the residents of the county would not merely fail to realize

the hoped-for economic benefits, they could actually be harmed. That is so because

the School District would either have to curtail its operations to absorb the lost tax

revenue or else the other taxpayers in the county would have to pay more to make

up for the loss.

¶ 28 Of course, the fact that a law might be ill-conceived does not, in itself, create a

constitutional problem for us to fix, for whether a statute is wise and whether it is

the best means to achieve the desired result are matters for the legislature, not the

courts. Crusius v. Illinois Gaming Board, 216 Ill. 2d at 332. The problem here,

however, goes beyond that. In terms of our constitution’s prohibition against

special legislation, the real flaw in Public Act 97-1161’s tax exemption for FBOs

leasing space from the MAA is not that there is no assurance that the law will ever

achieve its purpose. Rather, it is that there is no reasonable basis for limiting the tax

incentives to this particular type of business at this particular facility in this

particular part of the state.

¶ 29 Elliott Aviation depicts its circumstances as unique. They are not. Illinois has

many municipal airport authorities and numerous FBOs, including FBOs like

Elliott Aviation that operate near other states with a more favorable tax

environment. They, too, would stand to benefit from tax incentives. Indeed, the

same could be said of every other Illinois business throughout the state.

¶ 30 Elliott Aviation is an established enterprise which has no intention of moving or

curtailing its operations in Rock Island County, so the availability of aeronautical

services at the Quad City airport is not at risk. The company has, of course,

expressed a desire to expand, but there is certainly nothing remarkable about that.

The desire for expansion is a hallmark of for-profit businesses.

¶ 31 In upholding the law, the circuit court noted that Elliott Aviation’s operations in

Moline are minutes away from another airport in Davenport, Iowa. The court did

not explain the relevance of this point and we see none. Davenport is not the

alternate Iowa location where Elliott Aviation was considering expansion. The

record shows that Elliott Aviation’s Iowa facility is in Des Moines. Moreover, as

we have just observed, many other Illinois businesses operate in geographical

proximity to competitors and potential competitors in other states, and many

Illinois businesses compete with companies headquartered in states where the tax

climate may be more favorable.

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¶ 32 The potential economic benefits to Rock Island County are undeniable, but

nothing before us suggests that there is any particular set of economic

circumstances in that county that does not exist elsewhere or that would warrant

special property tax incentives for its businesses. Many parts of Illinois have

suffered in the wake of the recent recession and were already suffering before that.

All would benefit from economic investment and job growth of the type touted by

the Quad Cities Chamber of Commerce when it first proposed this legislation.

¶ 33 There was discussion on the floor of the Illinois House in response to the

Senate’s unsuccessful attempt to extend the tax break to a second airport, but it does

not point us to a rational basis for the law’s narrow reach either. During the

discussion, the legislation’s primary sponsor, Representative Verschoore, stated:

“[Senate Amendments 1 and 2] added another airport to this land-based

lease. I tried to pass this for the Quad City Airport only and when it went to the

Senate, they added the Lansing Airport. And so, what I’m trying to do is get it

back to the original Bill where it includes just the Quad City Metropolitan

Airport.”

This exchange followed:

“[Representative] Franks: What’s your objection to adding the extra one?

[Representative] Verschoore: Well, there was objection from people higher

up than me…

Franks: Oh.

Verschoore: …so I guess that’s my objection.

Franks: I get it. Okay. Well, thank you.” (Internal quotation marks omitted.)

97th Ill. Gen. Assem., House Proceedings, Aug. 17, 2012, at 3-4.

¶ 34 Elliott Aviation speculates that the “higher ups” referenced by Representative

Verschoore (whoever those might have been) had perfectly good and legitimate

reasons for granting special treatment for FBOs leasing property from the MAA in

Rock Island County and not extending the same benefit to anyone else, anywhere

else. Based on Verschoore’s vague and mildly ominous statements and Franks’s

responses (“Oh,” “I get it”), however, it seems just as likely that the limited

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applicability of the proposed legislation resulted from purely political

considerations wholly unrelated to the bill’s purposes or effects.

¶ 35 In sum, based upon what is before us, we do not see and cannot reasonably

conceive of anything that would justify distinguishing FBOs operating at the Quad

City airport from any number of other FBOs at other Illinois airports or, indeed,

from other Illinois businesses which operate on our borders or compete with

companies in more tax-friendly jurisdictions, for purposes of property tax liability.

To the contrary, the law presents a paradigm of an arbitrary legislative

classification not founded on any substantial difference of situation or condition.

Under article IV, section 13, of our constitution (Ill. Const. 1970, art. IV, § 13),

arbitrary statutory classifications which discriminate in favor of a select group

without a sound and reasonable basis are forbidden. Allen v. Woodfield Chevrolet,

Inc., 208 Ill. 2d 12, 21-22 (2003). The appellate court was therefore correct when it

concluded that Public Act 97-1161 violates the special legislation clause of the

Illinois Constitution and remanded the cause to the circuit court with directions.

¶ 36 CONCLUSION

¶ 37 For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 38 Affirmed.

¶ 39 JUSTICE THEIS, dissenting:

¶ 40 As the majority correctly notes, “statutes carry a strong presumption of

constitutionality.” Supra ¶ 16. A party challenging a statute bears a heavy burden of

clearly establishing a constitutional violation, and this court owes a duty to uphold

legislation when reasonably possible to do so. Big Sky Excavating, Inc. v. Illinois

Bell Telephone Co., 217 Ill. 2d 221, 234 (2005). In my view, the majority has paid

only lip service to that duty by excusing the School District from carrying that

burden.

¶ 41 Section 13 of article IV of the Illinois Constitution, the so-called special

legislation clause, provides, “The General Assembly shall pass no special or local

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law when a general law is or can be made applicable. Whether a general law is or

can be made applicable shall be a matter for judicial determination.” Ill. Const.

1970, art. IV, § 13. When a statute is challenged under that clause, our analysis is

twofold. Initially, we must determine whether the classification created by the

statute discriminates in favor of certain persons or entities. Crusius v. Illinois

Gaming Board, 216 Ill. 2d 315, 325 (2005). If so, we must determine whether the

classification is arbitrary. Id. The classification created by the Act is that fixed base

operators (FBOs) at the Metropolitan Airport Authority of Rock Island (MAA)

need not pay taxes on property leased from the MAA. The School District, as the

party challenging the statute, was required to show that the classification

discriminated in favor of FBOs at the MAA and that the classification was

arbitrary. It failed to do either.

¶ 42 Regarding the first part of our analysis, the special legislation clause (and its

predecessor in the 1870 Illinois Constitution) is founded upon “the conviction that

governments should establish and enforce general principles applicable to all their

citizens and not enrich particular classes of individuals at the expense of others.”

Supra ¶ 19 (citing Best v. Taylor Machine Works, 179 Ill. 2d 367, 391-92 (1997)).

A general law applies to all persons and entities in the same situation; a special law

does not. See Board of Education of Peoria School District No. 150 v. Peoria

Federation of Support Staff, Security/Policeman’s Benevolent & Protective Ass’n

Unit No. 114, 2013 IL 114853, ¶ 48 (quoting Bridgewater v. Hotz, 51 Ill. 2d 103,

109 (1972)).

¶ 43 The mere fact that a law affects only a single person or entity does not make it

special and, therefore, invalid under the special legislation clause. Big Sky

Excavating, 217 Ill. 2d at 235. The clause “prohibits the General Assembly from

conferring a special benefit or privilege upon one person or group and excluding

others that are similarly situated.” Crusius, 216 Ill. 2d at 325. The majority even

recognizes this: “If an entity is uniquely situated, the special legislation clause will

not bar the legislature from enacting a law tailored specifically to address the

conditions of that particular entity.” (Emphasis in original.) Supra ¶ 22; Peoria

School District, 2013 IL 114853, ¶ 55 (“Nothing in the constitution bars the

legislature from enacting a law specifically addressing the conditions of an entity

that is uniquely situated.” (citing Elementary School District 159 v. Schiller, 221

Ill. 2d 130, 154 (2006))); Bridgewater, 51 Ill. 2d at 109 (holding that the

constitutional prohibition against special legislation “does not mean that every law

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shall affect alike every place and every person in the State but it does mean that it

shall operate alike in all places and on all persons in the same condition”).

¶ 44 The procedural posture of this case does not affect the School District’s burden,

but rather enhances it. This case comes before us after the appellate court reversed

the trial court’s decision to grant Elliott Aviation’s motion for summary judgment.

See 735 ILCS 5/2-1005 (West 2014). On that motion, Elliott Aviation bore the

burden of persuasion, as well as the initial burden of production. Elliott Aviation

could satisfy the latter burden either by presenting evidence that, if uncontroverted,

would entitle the company to judgment as a matter of law on the School District’s

constitutional claim or by establishing that the School District lacked evidence to

prove that claim. See Williams v. Covenant Medical Center, 316 Ill. App. 3d 682,

688-89 (2000) (citing Purtill v. Hess, 111 Ill. 2d 229, 240-41 (1986)). The School

District then would bear the burden of production. The School District could satisfy

that burden by presenting evidence to support its claim. Williams, 316 Ill. App. 3d

at 689. In this context, the evidence for both parties would relate to the threshold

inquiry—whether Elliott Aviation was uniquely situated.

¶ 45 Elliott Aviation’s cross-motion for summary judgment had attachments, which

indicated that the company was arguably in a unique situation. Elliott Aviation

offered affidavits from Greg Sahr, its president; Bruce Carter, the airport executive

and director of aviation for the Quad City International Airport in Moline; and Tara

Barney, the Quad Cities Chamber of Commerce’s chief executive officer. Sahr’s

affidavit indicated that Iowa does not tax FBO leaseholds, while Illinois does. Sahr

continued:

“Growth in the general aviation field has caused a need for Elliott to expand

and grow its operations. Elliott has an opportunity to significantly expand its

business at either its Moline location or its location in [Des Moines,] Iowa or

[Minneapolis,] Minnesota. One factor Elliott must consider in deciding where

to expand its business is which location would be most financially beneficial.

Property taxes are a significant factor in Elliott’s expansion plans and prior to

the passage of the Act, Elliott had considered expanding at one of the

Company’s other locations where such an exemption exists. A number of

Elliott’s key competitors are in states that have such an exemption including

Iowa, Michigan and Nebraska. Moreover, Elliott competes nationally against

competitors that are located in states that do not levy property taxes on FBOs.”

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¶ 46 According to Elliott Aviation, “Rock Island County is the only county in

Illinois with a major airport that borders Iowa, which does not tax FBO leases at

airports.” Carter and Barney confirmed that Iowa does not tax FBO leaseholds.

Barney added that, in her belief, the bill that became Public Act 97-1161 provided a

significant incentive for the company to expand its operations in Moline.

¶ 47 In response, the School District presented very little. The School District’s

complaint seemed to assert that FBOs at the MAA are similar to other FBOs in

Illinois simply because there are other FBOs in Illinois. The School District alleged

that there are 20 FBOs in Illinois, including Elliott Aviation, but did not further

identify or describe the 19 FBOs outside Rock Island, aside from mentioning one in

Lansing. 1 The School District never alleged that any of those 19 FBOs purportedly

doing business in this state lease property from other airport authorities and pay

taxes on the leaseholds, that any of those FBOs plan to expand their businesses, or

that any of those FBOs suffered from tax disadvantages vis-à-vis their cross-border

competitors. Notably, the School District’s complaint had no attachments.

¶ 48 The trial court, faced with the School District’s weak and conclusory argument

and Elliott Aviation’s stronger and more supported argument, concluded that the

School District had not carried its burden to present evidence that Elliott Aviation

or other FBOs at the MAA are similarly situated with other FBOs across the state.

According to the trial court, the evidence suggested instead that Elliott Aviation is

uniquely situated due to its proximity to Iowa and its choice to expand its

operations either there or in Illinois. The appellate court ignored that evidence and

stated only that “as to the first element of a special legislation challenge, there is no

question that the legislation at issue in this case discriminates in favor of FBOs

leasing property from the Metropolitan Airport Authority.” 2015 IL App (3d)

140535, ¶ 24.

¶ 49 The majority’s holding is barely more in-depth than that of the appellate court:

“Public Act 97-1161, the law challenged in this case, clearly discriminates

in favor of a select group, as the appellate court correctly held. 2015 IL App

(3d) 140535, ¶ 24. By its terms, the law provides property tax relief only for

FBOs providing aeronautical services to the public at the MAA’s Quad City

1

In its memorandum in support of its motion to reconsider below, the School District mentioned that two airport

authorities—one in East Alton and one in Rockford—are located near borders with neighboring states but did not

discuss whether FBOs lease property from those airport authorities.

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International Airport, and there is only one of those, Elliott Aviation. No other

FBO providing aeronautical services to the public at any other Illinois airport

was given similar favorable treatment ***.” Supra ¶ 25.

¶ 50 The majority rejects Elliott Aviation’s depiction of its circumstances as unique.

According to the majority, “Illinois has many municipal airport authorities and

numerous FBOs, including FBOs like Elliott Aviation that operate near other states

with a more favorable tax environment.” Supra ¶ 29. The majority seems to accept

the unsupported allegation in the School District’s complaint that there are other

FBOs in Illinois, some of which conduct business at our borders. That is improper

for two reasons.

¶ 51 First, the majority violates rules on judicial notice. See Ill. R. Evid. 201(b) (eff.

Jan. 1, 2011); 735 ILCS 5/8-1001 (West 2014). Courts cannot take judicial notice

of facts that are “doubtful or uncertain” (Motion Picture Appeal Board v. S.K.

Films, 65 Ill. App. 3d 217, 226 (1978) (quoting Sproul v. Springman, 316 Ill. 271,

279 (1925))), and the School District’s allegation is certainly both. A statement in

its response brief before us is even more equivocal: “[T]he very nature of the

business that airport authorities and FBOs serve—air service—clearly

demonstrates that some, probably many, if not all, of the airport authorities and

FBOs in Illinois compete across state borders.” (Emphasis in original.) That

statement, however, is not based on anything in the record, and it directly

contradicts Sahr’s affidavit, which indicates that one FBO, Elliott Aviation, does

compete across a state border.

¶ 52 Second, the majority’s assumption that there are other FBOs in Illinois, as well

as other FBOs like Elliott Aviation, turns the presumption of constitutionality on its

head. The majority ignores the School District’s complete lack of any evidence

about the 19 FBOs purportedly doing business in Illinois and effectively excuses

the School District from presenting evidence relevant to the first half of our

constitutional analysis. The majority compounds that mistake by accepting the

School District’s argument that FBOs at the MAA are not only like all other FBOs

in Illinois but also like all other Illinois employers. Supra ¶ 29 (stating that “every

other Illinois business throughout the state” would benefit from tax incentives like

that in Public Act 97-1161). Apparently, the majority accepts the School District’s

argument, made in its motion to reconsider below, that even a statute creating a tax

exemption for all FBOs across the state would be special legislation because all

Illinois businesses are similarly situated.

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¶ 53 An “every other Illinois business throughout the state” yardstick provides the

wrong measure in special legislation cases. The legislature need not choose

between a statute that governs all businesses or no statute at all. See Chicago

National League Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 367 (1985). That is

simply inconsistent with cases such as Crusius, Big Sky Excavating, and Schiller,

where this court upheld statutes that benefitted a single person or entity. Schiller is

particularly instructive.

¶ 54 In Schiller, the owner of a 160-acre parcel of farmland planned to develop the

property as an upscale residential community. Although the property was in Cook

County, it was across a road from the Village of Frankfort in Will County. The

owner sought to have the property annexed into the Village, so that it would be a

part of the Village’s school districts, rather than Cook County school districts.

Senator Petka, whose district was near the property, proposed an amendment to an

annexation bill that “ ‘takes care of a local concern in Will County’ ” and that

would “ ‘solve a couple of school district issues *** also for a school district in

Will County.’ ” Schiller, 221 Ill. 2d at 135 (quoting 90th Ill. Gen. Assem., Senate

Proceedings, May 15, 1997, at 10; May 16, 1997, at 57-58 (statements of Senator

Petka)). That amendment became section 7-2c of the School Code and provided

that a portion of one school district may be attached to another adjacent school

district, if certain conditions were met. 105 ILCS 5/7-2c (West 1998). Those

conditions applied only to parcels of not more than 160 acres in Cook County and

wholly within the boundaries of another school district, where the property owner

had a pending annexation petition on the effective date of the statute—essentially,

only to the owner’s property. Pursuant to the statute, the owner filed a petition with

the state school superintendant to attach the property to the Will County school

districts. The superintendant agreed to do so.

¶ 55 Several school districts in both counties, as well as a resident of Cook County,

filed an administrative review suit. One of the plaintiffs’ arguments was that

section 7-2c violated the special legislation clause. The trial court found the statute

unconstitutional because it was enacted for the property owner “ ‘and no one

else.’ ” Schiller, 221 Ill. 2d at 141. This court reversed. We agreed with the trial

court that there was significant evidence in the record that the statute was intended

solely to benefit the property owner. That, however, did not doom the legislation:

“To contravene article IV, section 13, of our constitution, the statute must

confer on a person, entity, or class of persons or entities a special benefit or

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exclusive privilege that is denied to others who are similarly situated. Thus,

under the first part of the inquiry, we determine if another entity similarly

situated to [the owner] was denied a privilege. This burden has been met in

previous cases through evidence of other entities that would have been able to

benefit from the legislative privilege, but for some limiting exclusionary

provision.” Id. at 151.

¶ 56 After reviewing our case law, we concluded that the plaintiffs failed to

overcome the strong presumption of constitutionality with evidence that the benefit

to the property owner was denied to any other similarly situated person or entity. Id.

at 152. We noted that the plaintiffs did not claim that they were similarly situated to

the owner; instead, they made a conclusory argument that the statute’s requirement

of a pending annexation petition on its effective date prevented owners of other

property from effectuating a school district change. Id. The plaintiffs presented no

evidence that other property owners “sought to convert their farmland into

residential areas, desired the Village of Frankfort to annex their property, or

additionally sought a school district boundary change.” Id. at 153.

¶ 57 Like the plaintiffs in Schiller, the School District failed to present any evidence

about the plans of supposedly similar entities. Our review is de novo, but we still

must have something to review. Because the School District offered nothing to

suggest that any of the 19 other FBOs purportedly doing business in Illinois are

similarly situated to FBOs at the MAA, the School District failed to carry its burden

on the first part of our special legislation analysis.

¶ 58 Even if the School District had shown Public Act 97-1161 discriminates in

favor of FBOs at the MAA, it did not show that the Act is arbitrary. Regarding the

second part of our constitutional analysis, where, as here, the classification does not

involve a fundamental right or a suspect group, it is judged by the rational basis

standard. Crusius, 216 Ill. 2d at 325. Under the rational basis standard, the

classification is not arbitrary if it is rationally related to a legitimate governmental

interest. Id. That standard is highly deferential, and the classification will pass

constitutional muster where any conceivable set of facts justifies it. Big Sky

Excavating, 217 Ill. 2d at 238; Chicago National League Ball Club, 108 Ill. 2d at

369 (“if any state of facts can reasonably be conceived to sustain the classification,

the existence of that state of facts at the time the statute was enacted must be

assumed”); see also People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 124 (1998)

(“[u]nder the rational basis test, the court may hypothesize reasons for the

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legislation, even if the reasoning advanced did not motivate the legislative action”).

Elliott Aviation bore the initial burden to offer reasonably conceivable facts to

support the legislature’s decision to create a tax exemption for FBOs at the MAA. If

it did so, the School District then bore the burden to show that no reasonably

conceivable facts justified that decision.

¶ 59 In its memorandum in support of its cross-motion for summary judgment,

Elliott Aviation explained that before the statute was enacted, the company

weighed the pros and cons of expanding in Iowa and Illinois. The Quad Cities

Chamber of Commerce issued an “economic impact summary,” which showed that

the expansion project would bring millions of dollars and hundreds of jobs to Rock

Island County. That study, which was attached to Elliott Aviation’s memorandum,

concluded that a tax exemption for FBOs at the MAA would allow Illinois “to

compete on a level playing field with the two states immediately to the West on the

East-West flight corridor.” Elliott Aviation stated that Representative Verschoore,

the sponsor of Public Act 97-1161, mentioned that study in his debate comments

and highlighted the expected benefits from the project. Representative Morthland,

another supporter of the legislation, noted that it was intended “to facilitate an

expansion that will provide much reward to the community.”

¶ 60 The School District offered dual reasons why the statute was completely

arbitrary. In its complaint, the School District alleged that unemployment was

lower in Rock Island County than other counties in Illinois with airport authorities.

The School District referred to statistics from the United States Department of

Labor and the Federal Reserve Bank in St. Louis, which indicated that “the

unemployment rate for the last five months of 2012 for counties within the State

with airport authorities show there is no greater or special job needs in Rock

Island.” According to the School District, 18 counties had a monthly

unemployment rate higher than Rock Island County during that time. The School

District provided no citation for those statistics and did not state whether those

counties are home to the other 19 FBOs purportedly doing business in Illinois and,

if so, which ones. Again, the complaint had no attachments.

¶ 61 In its memorandum in support of its complaint, the School District changed

course, arguing that a tax exemption for FBOs at the MAA is not rationally related

to the Act’s goals, job creation and economic development, because the Act does

not directly create jobs and does not require an FBO at the MAA to create jobs

before receiving the tax exemption. According to the School District, “The Act’s

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affect [sic] on jobs is uncertain and remote.” That effect became even more tenuous

in the School District’s memorandum in support of its own summary judgment

motion, where the School District insisted, “The Act’s affect [sic] on jobs is

nonexistent.” The School District added that “the Act does not directly create or

fund jobs, nor does it require jobs be created for the exemptions to be created.”

¶ 62 The appellate court focused upon the School District’s retooled argument. The

appellate court agreed with the School District that any link between a tax

exemption for FBOs at the MAA and job creation or economic development was

speculative because the statute did not require those FBOs to reinvest the money

that they saved “in such a way to create jobs and economic growth in Illinois.” 2015

IL App (3d) 140535, ¶ 26. More importantly, the appellate court refused to believe

that the legislature had any reason for the classification in Public Act 97-1161,

holding that “there is no justification for singling out these particular for-profit

businesses over other businesses in Illinois or other FBOs in Illinois.” Id. ¶ 25.

¶ 63 The majority acknowledges that “[e]ncouraging Illinois businesses to expand in

Illinois and facilitating economic growth of our communities are unquestionably

legitimate functions of state government.” Supra ¶ 27. Like the appellate court, the

majority observes that the statute does not require Elliott Aviation to use its tax

savings to expand in Illinois. Id. And like the appellate court, the majority

identified a bigger problem with the statute. According to the majority, Public Act

97-1161’s “real flaw” is that “there is no reasonable basis for limiting the tax

incentives to this particular type of business at this particular facility in this

particular part of the state.” Id. ¶ 28.

¶ 64 The Illinois House voted 77-31 in favor of the bill that became Public Act

97-1161; the Senate voted 43-10 in favor of it. The majority’s holding that there is

no reasonable basis for the Act flies in the face of the decision by overwhelming

and bipartisan majorities in both the House and Senate that there is a reasonable

basis. The legislature may have believed that providing a tax exemption to FBOs at

the MAA like Elliott Aviation, and thereby providing an incentive to those entities

to expand there and not in a neighboring state, would lead to job creation and

economic development. The legislature also may have believed that limiting the tax

exemption as it did would mitigate any negative effects in other counties that are

not home to FBOs with expansion plans.

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¶ 65 We have long recognized that the legislature is free to make those types of

judgments. “The legislature need not choose between legislating against all evils of

the same kind or not legislating at all. Instead it may choose to address itself to what

it perceives to be the most acute need.” Chicago National League Ball Club, 108

Ill. 2d at 367; cf. Friedman & Rochester, Ltd. v. Walsh, 67 Ill. 2d 413, 421 (1977)

(“The equal protection clauses of the State and Federal constitutions do not prohibit

the legislature from pursuing a reform ‘one step at a time,’ or from applying a

remedy to one selected phase of a field while neglecting the others.”). As

Representative Morthland put it in the debate on the bill that became Public Act

97-1161, “[D]oing a good thing on a broad scale doesn’t preempt doing a good

thing on a small scale.” 97th Ill. Gen. Assem., House Proceedings, Mar. 29, 2012,

at 140 (statements of Representative Morthland). Due to its superior investigative

and fact-finding facilities, the General Assembly is far better suited than this court

to balance the benefits of a tax incentive for a group of businesses in one county

against detriments there and elsewhere.

¶ 66 The majority acknowledges that Elliott Aviation offered a reasonably

conceivable explanation—or what the majority ironically labels “perfectly good

and legitimate reasons”—for legislative leaders’ decision to limit the applicability

of the tax exemption in Public Act 97-1161. Supra ¶ 34. Contrary to our case law,

the majority rejects that explanation and instead focuses upon Representative

Verschoore’s comment that the Lansing airport was omitted from Public Act

97-1161 after “objection from people higher up than me” and Representative

Franks’s response of “I get it.” (Internal quotation marks omitted.) Id. ¶¶ 33-34.

The majority states that Verschoore’s comment was “vague and mildly ominous”

and asserts that limiting the Act to FBOs at the MAA was a result of “purely

political considerations wholly unrelated to the bill’s purposes or effects.” Id. ¶ 34.

¶ 67 Impugning the motives of a legislator based on a single comment devoid of

context is unnecessary. And suggesting that there is something untoward about a

political branch using political considerations to frame legislation seems naïve. See

Mercy Crystal Lake Hospital & Medical Center v. Illinois Health Facilities &

Services Review Board, 2016 IL App (3d) 130947, ¶ 34. A distaste for the

bargaining inherent in the legislative process is not a basis for striking down a

statute. Our constitutional role does not involve critiquing the legislative process.

See Crusius, 216 Ill. 2d at 332 (“It is not our place to second-guess the wisdom of a

statute that is rationally related to a legitimate state interest ***.”); Shields v.

Judges’ Retirement System, 204 Ill. 2d 488, 497 (2003) (“It is the dominion of the

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legislature to enact laws and it is the province of the courts to construe those

laws.”).

¶ 68 “Classifications drawn by the General Assembly are always presumed to be

constitutionally valid, and all doubts will be resolved in favor of upholding them.”

In re Petition of the Village of Vernon Hills, 168 Ill. 2d 117, 122-23 (1995).

Because the majority declines to demand that the School District clearly show that

the classification in Public Act 97-1167 was unconstitutional and resolves those

doubts in favor of striking down the statute, I dissent. I would remand this case to

the appellate court for consideration of the School District’s other constitutional

claims.

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