Petition for Writ of Certiorari — Cutinello v. Whitley

SUprems Court, U.S.

on FILED

941182 JAN 35 1995

No. _OEEIQE Ob THE @LAK

_

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

CONNIE CUTINELLO, etc., et al.,

Petitioners,

v.

DOUGLAS L. WHITLEY, etc., ef al.,

Respondents.

On Appeal From The Supreme Court Of

The State Of Illinois

There On Appeal From The

Circuit Court Of Cook County, Illinois

PETITION FOR WRIT OF CERTIORARI

Myron M. Cherry* Robert L. Sklodowski

Cherry & Flynn Sklodowski, Franklin, Puchalski

30 North LaSalle Street & Reimer

Suite 2300 111 West Washington Street

Chicago, Illinois 60602 Suite 1000

(312) 372-2100 Chicago, Illinois 60602

(312) 201-8202

Lee J. Schwartz

30 North LaSalle Street

Suite 2300

os " Ili oe

(312) 553-5050

eed ey”

ORAL ARGUMENT REQUESTED

PA, AOS ie a ym

QUESTIONS PRESENTED

1. Does 55 ILCS 5/5-1035.1 of the State of Illinois, which

authorizes only the Counties of Kane, DuPage and McHenry, by name,

(and no other counties) to impose a motor fuel tax violate the equal

protection clause?

2. Does the reliance of the Illinois Supreme Court on a mere

conjecture violate the due process clause?

TABLE OF CONTENTS

Page

Ss GP MT IPETEE 8 6 onc es canescens new iv

ee eer ee ee 1

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Paes GT SE GARE. x 6k 5d ook ee we 2

A er rere re ere ee ere rte 3

INTRODUCTORY COMMENTS .................005- 3

I. THE ILLINOIS STATUTE VIOLATES

EQUAL PROTECTION REQUIREMENTS ............ 4

Pe. «= a a a a 8 oe 4

B. 55 ILCS 5/5-1035.1 Is A Paradigm Case Of

impermissible Legislation .... 0... cc ccccccces 11

C. Classification Of Counties By Name

Alone Is Not A Rational Scheme .............. 13

D. There Are Rational Bases For

Re a a err 16

oe: ow eg ld ee er ee 20

F. The Counties’ Argument Rests

I Gs GE knw 6 tae nt ee sua nes 20

a rN re sere ere re ee ee 20

2. Fine Popuietiem AGWUNOME «wn ce cee eees 21

3. The Insufficiency Of The Fry Affidavit ........ 24

iii

Il. THE ILLINOIS SUPREME COURT VIOLATED

PETITIONERS’ DUE PROCESS RIGHTS

BY RELYING ON A MERE CONJECTURE ......... 27

EEE WA's ss b> SMBA At Sc kk cee ee ceeees 28

EE a") 4 one OER Db 48 de $09 bE G.dKe 2 Appendix 1-1

iv

TABLE OF AUTHORITIES

Page

Cases

Ambach v. Bell, 686 F.2d 974 (D.C. 1982) .............. 22

Chicago National League Ball Club, Inc.

v. Thompson, 108 Ill.2d 357,

sg oe ne fe ake Wk ae kw 9

Christen v. County of Winnebago, 34 Ill.2d 617,

og GG re #1, 12, 13, 15

County of Bureau v. Thompson, 139 Ill.2d 323,

a i sg ks hg 6 ee ee OS 16

Cutinello v. Whitley, 161 Ill.2d 409,

ey Se ea gg 6 4 ha ae 2 se es 1,3

Federal Communications Commission v. Beach

Communications, Inc., 508 U.S. __,

SE Be |g Oe ED vic es eves ee eases 8

In re Belmont Fire Protection District, 111 1.2d 373,

ef Re ee 14, 16, 18, 19

Kremers v. City of West Chicago, 406 Ill. 546,

Po gl ea 11, 12, 13

Lehnhausen v. Lake Shore Auto Parts, 410 U.S. 356,

oo Re em EE 27

McDonald v. Board of Election Commissioners,

394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739

I he rk ae re ee ee 8

Nordlinger v. Hahn, 505 U.S. __, 112 S.Ct. _,

SE a es os 5k es ks eck acs 8, 27

Vv

People ex rel. County of DuPage v. Smith,

21 Ill.2d 572, 173 N.E.2d 485 (1961) ........ 9, 15, 19, 24

People ex rel. East Side Levee & Sanitary Dist.

v. Madison County Levee & Sanitary Dist.,

54 Ill.2d 442, 298 N.E.2d 177 (1973) .......... 11, 12, 13

Pettibone v. West Chicago Park Commissioners,

215 Ill. 304, 74 N.E. 387 (1905) ............. 11, 12, 13

Solon v. Godbole, 163 Ill.App.3d 845,

516 N.E.2d 1045 (3rd Dist. 1987) ........----- eee 24

Tucker v. U.S. Dept. of Commerce, 958 F.2d 1411,

CR SUES CA CRE Rete Acar es se eee ees 22

United States R.R. Retirement Board v. Fritz,

449 U.S. 166, 101 S.Ct. 453, 61 L.Ed. 368

Cas Boss ee a a es ee. Fa 8, 27

Statutes

Oe eae oes se ee ow ee ss

i i TNE ies Ss HR BEE et 2

DS BE WIS 5 is bikes ee C6 eased) OR RS i

Illinois Supreme Court Rule 191(a) ..........----

Other Authoriti

BRADEN AND COHN, The Illinois Constitution: An

Annotated and Comparative Analysis, 209 (1969)

House Transcript, June 30, 1989 ........-.-0 eee eee:

Senate Transcript, June 30, 1989 .......-.- +e seer eens

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

CONNIE CUTINELLO, etc., ef ai.,

Petitioners,

v.

DOUGLAS L. WHITLEY, etc., ef ai.,

Respondents.!

On Appeal From The Supreme Court Of

The State Of Illinois

There On A From The

Circuit Court Of Cook County, Illinois

PETITION FOR WriT OF CERTIORARI

REPORT BELOW

Cutinello v. Whitley, 161 Ill.2d 409, 641 N.E.2nd 360 (1994). This

case is set forth in full in the Appendix to this Petition.

JURISDICTION

a. The Illinois Supreme Court decided this case on May 19, 1994,

and denied Plaintiffs’ Petition for Rehearing on October 3, 1994.

' Plaintiffs-Petitioners are Connie Cutinello, individually and on behalf of all others

similarly situated; Carl Svoboda, individually and on behalf of all others similarly

situated; Brent Christensen, individually and on behalf of all others similarly situated;

Elgin West 76 Truck Stop, individually and on behalf of all others similarly situated;

Hampshire Puel Stop, Inc., individually and on behalf of all others similarly situated;

Food and Puel of Harvard, Inc., individually and on behalf of all others similarly

situated; and Martin Oil Marketing, Lid., individually and on behalf of all others

similarly situated. Defendants-Respondents are Douglas L. Whitley, Director of the

Illinois Departmen of Revenue, Dawn Clark Netsch, Comptroller of the State of

Illinois, and Patrick Quinn, Treasurer of the State of Illinois. Defendants-Respon-

dents and Intervening Defendant-Respondent are County of Kane, County of

McHenry, and County of DuPage. References in the text to Defendants are references

to the three counties.

2

b. This Court has jurisdiction under 28 U.S.C. 1257, authorizing

this Court to review decisions of the highest court of a state finding a

state statute valid against a federal constitutional challenge:

Final judgments or decrees rendered by the highest court of a

State in which a decision may be had, may be reviewed by the

Supreme Court by writ of certiorari . . . where the validity of a

statute of any State is drawn into question on the grounds of

being repugnant to the Constitution . . . of the United States.

c. The Constitutional provisions involved are:

Nor shall any state deprive any person of life, liberty, or

property without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

U.S.Const., Am. XIV.

d. The state statute involved provides:

The county board [sic] of the counties of DuPage, Kane and

McHenry may, by an ordinance or resolution adopted by an

affirmative vote of a majority of the members elected or

appointed to the county board, impose a tax upon all persons

engaged in the county in the business of selling motor fuel, as

now or hereafter defined in the Motor Fuel Tax Law, at retail

for the operation of motor vehicles upon public highways or for

the operation of recreational watercraft upon waterways. ...

(Emphasis added.)

55 ILCS 5/5-1035.1.

STATEMENT OF THE CASE

In 1989, the Illinois General Assembly enacted P.A. 86-18 that,

among other things, authorized the Counties of DuPage, Kane and

McHenry Counties (by name) to impose a motor fuel tax of up to 4¢

per gallon. The three counties exercised their authority. Three

purchasers of motor fuel (one in each county) and four service stations

(at least one in each county) sued to have the local ordinances

invalidated based on the alleged unconstitutionality of the authorizing

3

legislation on both state and federal constitutional grounds. The trial

court preliminarily enjoined the distribution of the county motor fuel

tax monies to the counties and then, upon further briefing, entered its

permanent injunction against collection and distribution of the taxes.

The trial court partly stayed its final order, allowing for the continued

collection, but not distribution of the taxes, pending appeal.

The Illinois Supreme Court reversed the trial court, finding the

authorizing legislation to be valid on both state and federal constitution-

al grounds. The Petition for Rehearing was denied and this Petition for

Writ of Certiorari followed.

ARGUMENT

Connie Cutinello, etc., et al. , Plaintiffs-Petitioners ("Petitioners” or

"Plaintiffs"), by their attorneys, petition this honorable Court for a writ

of certiorari to the Illinois Supreme Court pursuant to 28 U.S.C. 1257.

INTRODUCTORY COMMENTS

The Illinois Supreme Court has taken a perfectly serviceable

doctrine enunciated by this Court in evaluating equal protection

challenges to legislation and turned it into an impenetrable wall,

foreclosing perfectly valid attacks on flawed state legislation. In this

case, the Illinois Supreme Court overturned a decision by a learned

trial court judge who had invalidated 55 JLCS 5/5-1035.1 and ordinanc-

es passed under its authority. The Illinois Supreme Court held that a

Statute that granted three disparate counties, by name, and only those

three counties (out of 102 counties in Illinois) power to tax motor fuel

was not invalid under the Illinois special legislation ban and, therefore,

also not invalid under the equal protection clauses of the state and

federal constitutions, which are resolved under identical legal analyses.

4

Petitioners have no objection to the oft-repeated tenets (1) that there

is a presumption of validity to legislation, (2) that a legislative body has

broad discretion in creating classifications and (3) that there must be a

reasonable basis for a legislative classification. Indeed, Petitioners

suggested various classifications that would have been entirely valid.

In this case, however, the equal protection clause was twisted so far by

the Illinois Supreme Court that no legislation could ever be invalidated

for violation of that clause. The presumption of validity is not a

legislative doctrine of infallibility.

In addition, Petitioners’ due process rights were held for naught

when the Illinois Supreme Court relied on a factual assertion by

Defendants to uphold the legislation when the factual predicate has

twice been perfectly properly rejected by the trial court when that court

had stricken the affidavit that contained the factual predicate. The

Illinois Supreme Court, nevertheless, took as true the facts attached to

the affidavit and held against the Petitioners for failing to disprove

matters that had been disallowed.

As shown in greater detail below, this Court should hear this case

so that it can review (and reverse) this thoroughly incorrect decision of

the Illinois Supreme Court.

I.

THE ILLINOIS STATUTE VIOLATES

EQUAL PROTECTION REQUIREMENTS

A. In General

The analysis by the Illinois Court makes it virtually impossible for

a party to ever win an equal protection challenge to legislation. In its

opinion, the Illinois Supreme Court states that its analysis is solely a

question of law, but its decision is premised on a recitation of facts

2

that, so far as the record in this case is concerned, are simply a set of

fictions. In particular, the Defendants twice proffered to the trial court

an affidavit of a highway engineer that had charts stapled to it that were

not even referenced in the affidavit. The charts purported to show

population changes among some Illinois counties in the early and mid-

1980s. Twice, the trial court refused to allow the affidavit into

evidence, finding a total failure to comply with Illinois Supreme Court

Rule 191. The Illinois Supreme Court did not overturn, nor did it even

address, this totally correct ruling of the trial court. Instead, that Court

turned a mere supposition, an intellectual what-if, into its basis for

decision. The Counties of DuPage, Kane and McHenry could have

been the slowest-growing, the most average, or the fastest growing

counties of Illinois — or even one of each — during the 1980s. Yet if

the Defendants merely suggest a possibility, it now becomes incumbent

on the Plaintiffs (according to the Illinois Supreme Court) to prove all

possible idle speculation to be false.

If, on the other hand, it is the Illinois Supreme Court’s view that

any speculation, even if idle or false, overcomes reality and may not

be met with evidence as to the facts, then that Court’s position

implicates even greater due process concerns. See Argument II below.

It would allow total falsehoods to prevail over truth, so long as

someone could conceive that something is a fact (even if it is not).

One could conceive that Chicago is the smallest city in Illinois — but

it is not. One could conceive that Cook County is a rural county, but

it is not.

The Illinois Supreme Court’s opinion penalizes Plaintiffs for having

successfully challenged the introduction of Defendants’ purported

6

evidence. There being nothing before the trial court other than mere

supposition, Plaintiffs did not try to disprove what had become literally

a baseless speculation. Had Defendants said they were the three largest

counties in Illinois on as little evidence (that is, none) as was before the

trial court, would Plaintiffs have had the burden of disproving that

falsehood? If this Court answers yes, then it should remand this case

to allow Plaintiffs the appropriate opportunity.

The Illinois Supreme Court made no attempt to respond to Plaintiffs’

initial argument that the legislature has made no classification at all; it

simply had denominated three counties by name to be granted the

privilege of imposing a motor fuel tax, in as clear a violation of the

equal protection clause as there could be. Rather, that court, in an

alchemical display of transforming lead to gold, found the hidden

Classification in the unproven assertion of the Defendants that these

three counties share a special property, that of being the three fastest

growing counties of Illinois (by percentage) during a 7-year period.

Thus, the legislation is miraculously transmuted to read: "The county

boards of the three fastest growing counties from 1980-87" may impose

a county motor fuel tax. Not the three fastest growing counties for

each prior seven years may thereafter impose the tax, but the three

fastest growing counties for a 7-year period during the 1980’s may

forever impose a motor fuel tax even if other counties grow at faster

rates, or even if all counties grow at faster rates. As Justice Charles

Freeman properly pointed out in his dissent, "the classification here is

an arbitrary distinction not founded upon any substantial difference of

situation or condition... ." 161 Ill.2d at__, 641 N.E.2d at 368.

7

The Illinois Supreme Court suggested that pure conjecture of what

the legislature had in mind is sufficient to uphold a legislative classifi-

cation, 161 Ill.2d at _, 641 N.E.2d at 365. However, this Court

need not enter into conjecture when the legislative history is quite clear

as to why the legislature did what it did. As Plaintiffs point out below,

other similar counties were excluded because their legislators wanted

them excluded. And as Justice Freeman pointed out, the rationale for

P.A. 86-16 is to enhance economic development through improved

roadways. 161 Ill.2d at _, 641 N.E.2d at 368. Further, as Plaintiffs

point out below, the legislature had before it a report by the Illinois

Department of Transportation, Lifelines to the Economy, that would

have justified a subclass of counties to be given the motor fuel tax

power, but not just DuPage, Kane and McHenry Counties. Courts

should not rely on fictions when facts are not only readily obtainable

but are provided to them. Indeed, except in cases like this, the thrust

of modern American jurisprudence has been to encourage decisions

based on fact, not on judicial fiction.

Petitioners agree with Justice Freeman and this Court that the equal

protection clause allows some classification, but that it prohibits

arbitrary legislative classifications. 161 Ill.2d at _, 641 N.E.2d at

368. Petitioners have argued that there is no rational or substantial

difference of situation or condition and there is no substantial difference

of situation which can support this classification, and Justice Freeman

is absolutely correct that "the basis for the distinction between the

blessed counties and these which have not been included under the act

. . . Femains unsatisfied." Jd. (emphasis added).

The Illinois Supreme Court relies on federal cases involving equal

protection challenges to legislation. 161 Ill.2dat__, 641 N.E.2d at

365, citing Nordlinger v. Hahn, 505 U.S. __, 112 S.Ct. __, 120

L.Ed.2d 1 (1992); United States R.R. Retirement Board v. Fritz, 449

U.S. 166, 101 S.Ct. 453, 61 L.Ed. 368 (1980); McDonald v. Board of

Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739

(1969); Federal Communications Commission v. Beach Communica-

tions, Inc., 508 U.S. _ , 113 S.Ct. __, 124 L.Ed.2d 211 (1993).

The Illinois Supreme Court discussed none of the classifications that

allowed this Court to uphold the challenged legislation there. In none

of those cases was there merely a denomination of the "blessed"

privileged ones by name. Nor was there a legislative history in those

cases that spelled out the real reason for the classification (a reason that

the Defendants here have never contravened). in short, the federal

cases only serve as a starting point for analysis, not as a mantra to

conclude or obviate analysis of the specific legislation involved.

The Illinois Supreme Court erred when it stated that Petitioners

responded to the Defendants’ argument by reanalyzing the data

tendered by them (but rejected by the trial court). 161 Ill.2dat___,

641 N.E.2d at 365. What Petitioners did do is point out that even if

the data were allowed into evidence (which it was not), it did not prove

what Defendants wanted to prove. See below. The Illinois Supreme

Court not only rejected Petitioners’ analysis, but, more importantly, it

accepted Defendants’ statistics as if they were true without having given

Petitioners a chance to refute them. :

In his dissent, Justice Freeman went to the core of the error made

by the majority, the arbitrariness of the classification. Petitioners adopt

9

his discussion of the constitution, the cases and the facts to the extent

they are known. Justice Freeman correctly notes that in legislation

challenged in Chicago National League Ball Club, Inc. v. Thompson,

108 Ill.2d 357, 483 N.E.2d 1245 (1985), and People ex rel. County of

DuPage v. Smith, 21 I11.2d 572, 173 N.E.2d 485 (1961), the Illinois

legislature respectively (1) drew a distinction among different sorts of

sports facilities and (2) granted special authority to all the collar

counties around Cook County, not just three of them. The difference

between Smith and this case is particularly relevant. The growth of the

collar counties and the similarity of their needs is a continuing and

long-standing demographic fact from, at least, the end of World War

Il through today. Thus, upholding the collar counties as a class is

rational. But other variations among the collar counties are more

evanescent. For example, some grow more rapidly at one time; at

other times, others do. Legislation which has no sunset provision, like

this, cannot rationally rely on transient factors but must be grounded

in more enduring characteristics, such as those cited in Smith. The

fragility of the distinctions that are relied on by the majority and

discussed in detail by Justice Freeman in his dissent alone should lead

this Court to grant the Petition for Writ of Certiorari and affirm the

decision of the trial court.

Justice Freeman properly chides the majority for failing to deal with

both prongs of an equal protection challenge. The first prong is

relation to purposes of the act. As Justice Freeman notes: “If relation

to purpose were the only relevant inquiry, special legislation could

always be sustained, regardless of how arbitrary the distinction between

the classes." 161 Ill.2d at _, 641 N.E.2d at 368. Here, for

ie

z

10

instance, the “blessed counties" are given just what the legislature

wanted to give them, motor fuel taxing authority, but there is no

“substantial difference of situation or condition” Jd. that justifies this

grant to these three counties alone.

Justice Freeman, relying on prior decisions of the Illinois Supreme

Court, as well as on BRADEN AND COHN, The Illinois Constitution:

An Annotated and Comparative Analysis, 209 (1969) (a book prepared

for the 1969-70 Illinois Constitutional Convention), focuses on the need

for the legislature not to draw arbitrary lines in order to avoid equal

protection violations. Even accepting the “facts” as asserted by the

Defendants, Justice Freeman finds that the Defendants’ "facts"

demonstrate the arbitrariness of the legislative classification. 161 Ill.2d

at__, 641 N.E.2d at 370.

The Illinois Supreme Court inappositely states that population can

be an appropriate criterion to classify. 161 Ill.2d at __, 641 N.E.2d

at 364. However, there is no suggestion that the classification here is

based on population, and, indeed, many counties in Illinois fall between

the populations of McHenry County and DuPage County, including the

other two collar counties of Lake and Will. Further, the Illinois

Supreme Court acknowledges that Petitioners’ documentation shows

that “the worst congestion problems exist in the northeastern part of the

State [and that] the [three designated] Counties rank high in terms of

urban congestion based on miles of congested roadway and the cost of

relieving the congestion." 161 Ill.2d at __, 641 N.E.2d at 366. But

that showing by Plaintiffs does not demonstrate how the Defendants are

sO unique as to justify their becoming the "blessed counties." See

below. Petitioners have never opposed classification as such, rather

11

they have said that this particular legislative classification is unconstitu-

tional, lacking in rational basis in its application to only the three

favored counties.

In sum, as Justice Freeman points out in his dissent, the majority

answers only one of the two prongs of a special legislation challenge

and utterly fails to address the second prong, making it virtually

impossible for plaintiffs to ever succeed, making the equal protection

clause nugatory, and making the case for granting Plaintiffs’ Petition

for Writ of Certiorari more compelling, so that this Court can correct

the error of the Illinois Supreme Court.

B. 55 ILCS 5/5-1035.1 Is A Paradigm Case Of

Impermissible Legislation _

Legislation which creates dissimilarities in the taxing powers of local

governments, if unsupported by a reasonable legislative classification

of the governments which are granted disparate taxing powers, violates

the equal protection clause. Kremers v. City of West Chicago, 406 Ill.

546, __, 94 N.E.2d 337, 340 (1950). Similarly, legislation which

confers special benefits on a group of local governments, where the

basis for the grouping is random or arbitrary, violates the constitutional

prohibition on local legislation (i.e., violates equal protection).

Christen v. County of Winnebago, 34 Ill.2d617, _, 218 N.E.2d 103,

106 (1966), Pettibone v. West Chicago Park Commissioners, 215 Il.

304, _, 74N.E. 387, 399 (1905). Moreover, legislation which grants

specific benefits to a group to local governments but denies the same

benefits to governments which may in the future attain the same status

as the benefitted governments violates the constitutional prohibition on

local legislation. People ex rel. East Side Levee & Sanitary Dist. v.

Madison County Levee & Sanitary Dist., 54 Il.2d 442, _, 298

12

N.E.2d 177 (1973); Pettibone v. West Chicago Park Comm’rs, 215 lll.

at__—, 74N.E. at 399.

In Pettibone v. West Chicago Park Comm’rs, the Illinois Supreme

Court invalidated a statute which authorized park commissioners in

park districts coextensive with a town within a city to issue bonds for

the purpose of creation of new parks. 215 Ill. at__, 74 N.E. at 399.

The statute designated a single park district — the Park District of West

Chicago — for special benefits and it limited the benefit to those

districts having the specified characteristics when the law was enacted.

The statute violated the constitutional prohibition of local legislation

because the classification scheme, which designated a single park

district, was arbitrary and because the statute had no rational ground.

Id.

Similarly, in People ex rel. East Side Levee & Sanitary Dist. v.

Madison Cty. Levee and Sanitary Dist., the Illinois Supreme Court

invalidated a statute which granted the benefit of single-county

administration and control to sanitary districts serving two counties and

having an equalized assessed valuation of $100 million as of the

effective date of the Act. The law applied only to Madison and St.

Clair Counties. Finding no reason for restricting the putative benefits

to two counties, the court held that the statute was impermissible local

legislation. 54 Ill.2d at__, 298 N.E.2d at 180. In Kremers, supra,

the Illinois Supreme Court invalidated a law that had the effect of

producing different tax rates in local governments of the same size and

type, exactly the situation here. 406 Ill. at__, 94 N.E.2d at 340. In

Christen v. County of Winnebago, the Illinois Supreme Court invalidat-

ed a statute that allowed counties having a population of more than

13

200,000 but less than one million to issue general obligation bonds

without referendum for purposes of construction of county court

houses. 34 Ill.2d at___, 218 N.E.2d at 106. The court noted that the

legislature had found a statewide need for new county court houses

and, accordingly, characterized the statutory classification scheme as

"random." 314 111.2d at _, 218 N.E.2d at 105, 106.

Under 55 ILCS 5/5-1035.1, a county will qualify for a new taxing

power if it is named DuPage, Lake or McHenry. A more arbitrary and

random scheme for classification cannot be imagined:

An obvious example of local legislation would be a statute

proposing to permit the city of Onetown to have five dog-

catchers, notwithstanding a general law that limited all cities to

four dog-catchers. Another example would be a law which

permitted Onetown to annex North Onetown, whether or not

there was a general law setting forth a procedure for annexation.

BRADEN AND COHN, The Illinois Constitution at 207. The classifica-

tion schemes invalidated in Pettibone, Christen, Kremers, or East Side

Levee were, at least, legislative efforts to write a general law. Here,

the legislature has simply disregarded the constitution by writing a

purely local law without even attempting to establish a framework of

general applicability. 55 JLCS 5/5-1035.1 is a paradigm case of

impermissible unequal protection and should be invalidated.

C. Classification Of Counties By Name

Alone Is Not A Rational Scheme _

55 ILCS 5/5-1035.1 permits the counties of DuPage, Kane and

McHenry by name to impose a tax on retail sales of motor fuel. No

other county qualifies under that legislation for the privilege of

imposing a motor fuel tax within its territory. The sale of motor fuel

at retail from outlets in DuPage, Kane or McHenry counties is thus

Ee eee

14

subject to a particular burden not imposed on motor fuel in one of the

neighboring “collar counties" of Lake or Will nor in any of the other

ninety-six’ counties of Illinois — large or small, urban or rural,

developing or declining.

A legislative classification scheme will Satisfy the constitution if it

is based upon “a rational difference in situation or condition." In re

Belmont Fire Protection District, 111 1.2d 373, __, 489 N.E.2d

1385, 1388 (1986). 55 ILCS 5/5-1035.1 provides no Classification

scheme, other than that of identifying by name the counties that will

benefit from the advantage of additional revenue. Either the statute is

constitutionally defective on its face or a rational classification scheme

must be implied from the situation or condition of the three named

counties.

The Counties might have argued that the statute satisfies the

requirement of a reasonable classification scheme because it applies

only to large counties. Population-based classification schemes often

satisfy the test of reasonable classification. Belmont, 111 Ill.2d at ee

489 N.E.2d at 1388. However, no population-based scheme is

expressly provided in the statute, nor can one be inferred. The

Counties of Lake, Will, Winnebago, Peoria, Sangamon, Champaign,

’ Cook County is the 102nd county and has home rule powers to tax the retail sale

of motor fuel.

15

and Rock Island all have populations that fall within the parameters

impliedly employed in the statute.’

Arguably, DuPage, Kane and McHenry counties are alike in that all

are proximate to Cook County and subject to problems related to

urbanization to a degree not found elsewhere in Illinois. See, e.g.,

People ex rel. County of DuPage v. Smith, 21 Ill.2d 572, 173 N.E.2d

485 (1961). Yet, Lake and Will counties are also proximate to Cook

County and subject to the same problems of urbanization but are

inexplicably excluded.

Arguably, DuPage, Kane and McHenry counties are alike in that all

are experiencing rapid population growth. Yet, given the historical

growth rate of Lake and Will Counties, the exclusion of those counties

from the fuel tax classification scheme is nonsensical. See, ¢.g.,

Christen v. County of Winnebago, 34 Ill.2d at __, 218 N.E.2d at 105.

The standard for judicial review of challenged legislation is as

follows:

. According to the 1980 census (the last census prior to the enactment of P.A. 86-

16), the population of the counties named in P.A. 86-16 was:

County

DuPage 658 835

Kane 278,405

McHenry 147,897.

The 1980 census found the following populations in other Illinois counties:

Lake 440,372

Will 324,460

Winnebago 250,884

Peoria 200 ,466

Sangamon 176,089

Champaign 168,392

Rock Island 165,968.

b, ee

Ae RAR re .y

16

To render a statutory classification valid, the classification must

be based upon a rational difference of situation or condition

found to exist in the persons or objects upon which the classifica-

tion rests. [Citations omitted.] ... [I]n addition to a reason-

able basis for the classification, the classification must also bear

a rational and proper relation to the evil to be remedied and the

purpose to be attained by the legislation. [Citations omitted. ]

In re Belmont Fire Protection District, 111 Wl. 2d 373, 380, 489

N.E.2d 1385, 1388 (1986). See also, County of Bureau v. Thompson,

139 Ill.2d 323, 336, 564 N.E.2d 1170, 1177 (1990).

The presumption of constitutionality accorded to any legislative

enactment, including laws which classify counties or laws which confer

the privilege of imposing a tax, is overcome when a law "arbitrarily

discriminates in favor of a select group." County of Bureau, 139 Ill.2d

at 336, 564 N.E.2d at 1177-78; Belmont, 111 Ill.2d at 380, 489

N.E.2d at 1388.

D. There Are Rational Bases for Classification

The facts reported in a 1989 survey of road conditions in Illinois

indicate that the problems facing DuPage, Kane and McHenry counties

are not different from those of other counties similarly situated.‘

Illinois Department of Transportation, Lifelines to the Economy (1989).

The Lifelines study assesses the current conditions and future needs

of the state’s transportation systems, including state roadways. The

study found that serious problems of roadway congestion exist in

In 1991, the legislature added an element of non-uniformity even among the three

favored counties. P.A. 87-289, effective January 1, 1992, authorizes Kane County,

but only Kane County, to “exempt diesel fuel from the tax imposed pursuant to this

section.” So not only is the act invalid for the reasons set forth in the main text, it is

also non-uniform among the favored three counties, as the legislature piles another

element of invalidity into the mix.

17

densely populated areas of the state. The study identified the number

of miles of congested roadways in each county and forecast the cost of

relieving the congested conditions. Lifelines at p. 32, id. The “worst”

counties — as measured by miles of over-utilized roadways — were:

DuPage County (152.2 miles; $984.1 million needed to alleviate

congestion); Lake County (38.1 miles; $168.1 million); Madison

County (23.8 miles; $90.6 million); Will County (17.8 miles; $92.7

million); and McHenry County (15.4 miles; $84.1 million).° Jd.

The Lifelines study was published in April, 1989 and was available

to legislators when the statute was under consideration. The Lifelines

data indicate significant differences in congestion conditions in DuPage

and McHenry counties. The data also indicates that a classification of

counties based on roadway congestion would include Lake and Will

Counties in addition to DuPage, Kane and McHenry in Northeastern

Illinois and St. Clair and Madison Counties in downstate Illinois. It is

untenable to argue, as the Counties have, that the legislature properly

focused on “rapid population growth or increased usage of roads" in

three counties alone. The contemporaneously available — and

contradictory — facts deprive the Counties’ argument of credibility.

A much more credible explanation of the classification scheme is

found in the legislative debates. There, legislators from Lake County

— a county which should have been included in a rational classification

scheme based on similarity of conditions — spoke in support of the Act

5 If ranked by cost to create new roadway capacity, the list would also include St.

Clair County (10.5 miles; $216.4 million). Contrast: Peoria County (6.4 miles; $19

million); Rock Island County (9.1 miles; $52 million).

2B Nest Sr em SEO

18

because it excluded Lake County from the scope of the County Motor

Fuel Tax.

Representative John Matijevich, a Democrat from North Chicago in

Lake County had this to say on June 30, 1989:

I was sort of apprehensive at first about voting for this because

my County Board wanted me also to vote for a local option, a

four cent option. And I said to my County Board, you know

that we’re on the border of Wisconsin... . I didn’t want four

cents on top of that for my County of Lake... . I just didn’t

want my county to have one on top of that.

House Transcript, June 30, 1989, p. 257.

Senator Adeline Geo-Karis, a Republican from Zion, also in Lake

County, said on the same day:

I did object to the fact that it was included for my county to be

able to go up to four cents. That has been taken out. (Emphasis

added.)

Senate Transcript, June 30, 1989, p. 309.

Thus, the opposition by two legislators from Lake County, one a

Republican and one a Democrat, one a Senator and one a Representa-

tive, but both in the leadership of their respective parties in their

respective Houses, led to a perfectly understandable political accommo-

dation. There is absolutely nothing wrong with political accommoda-

tions; indeed, they are necessary for government to run. However,

political accommodations must still meet constitutional standards. The

equal protection clause prevents states from arbitrarily granting

privileges to politically powerful local governments or penalizing the

politically weak or disfavored.

As the Illinois Supreme Court said in Jn re Belmont Fire Protection

District:

19

The record demonstrates that there is no substantial difference

between the situation existing in DuPage County and the

conditions which exist in Kane, McHenry, DeKalb, Lake, Will,

Sangamon, Winnebago, and Champaign counties insofar as

municipalities that are served by multiple fire protection districts

is concerned. We can perceive of no rational reason why a

municipality served by multiple fire protection districts in a

county with a population between 600,000 and 1 million can be

said to differ from a municipality which is served by multiple

fire protection districts in a county with less than 600,000 or

more than | million inhabitants. If a real need exists to elimi-

nate the alleged disadvantages and dangers of multiple fire

protection districts serving one municipality, then the same need

to remedy this evil also exists in other counties as well, regard-

less of the level of the population of the county.

111 I1l.2d at 381-82, 489 N.E.2d at 1389.

The Illinois Supreme Court’s reasoning in Belmont should apply

with equal force to the facts of the present case. There is simply no

substantial difference between the conditions which exist in DuPage,

Kane and McHenry counties and the conditions in counties of compara-

ble size or proximity to a large metropolitan area.° If a real need for

roadway improvements exists in DuPage, Kane and McHenry counties,

then the same need to remedy the problem exists in other Illinois

counties as well. Indeed, another provision of P.A. 86-16, an increase

in the rate of the state motor fuel tax, seems to have been enacted to

accomplish just that purpose.

© For this reason, People ex rel. County of DuPage v. Smith, 21 11.2d 572, 173

N.E.2d 485 (1961), on which the Counties rely, is readily distinguishable. The statute

upheld in Smith applied to all the “collar” counties bordering on Cook County. 55

ILCS 5/5-1032.1 applies to only three of the collar counties — and not even the three

largest of the five counties which surround Cook County. Here, the very fact that the

legislature identified the three counties by name indicates that it could devise no

general description to define a class that would include DuPage, Kane and McHenry

counties but exclude Lake and Will counties.

20

E. The Trial Court’s Decision

The trial court, after reviewing the arguments and the evidence

adduced by Plaintiffs and using the standards enunciated by this Court,

correctly decided:

Plaintiffs have presented this Court with overwhelming evidence

that the problem of deteriorating roadways and the need for

additional transportation infrastructure is not limited to the

Counties of DuPage, Kane and McHeary. Furthermore, plain-

tiffs have negated every conceivable basis for the classification

drawn by this legislation. There is no possible set of circum-

stances under which these three counties could be classified

together without excluding some other county similarly situated.

Classifications based on size, population, population growth,

projected population growth, miles of highways, number of

bridges in need of repair and daily average of highway miles

driven, all would include counties in addition to the three named

in P.A. 86-16. In addition, these three counties are not the

poorest counties in the state, and there is no indication that these

counties have an insufficient tax base from which they could

finance the construction and repair of roads, bridges and water-

ways.

Since P.A. 86-16 confers a benefit upon a portion of the state to

the exclusion of others similarly situated, it . . . is void.

Op. 11/10/92, pp. 23-24.

F. The Counties’ Argument Rests

1. In General

The Counties, however, contended that DuPage, Kane and McHenry

represent a unique class in that, so they say, those three counties

experienced the fastest population growth in the state between 1980 and

1987. This alleged uniqueness of the three counties provides a rational

basis for the granting of special powers, they argue. Accordingly, on

the Counties’ view, 55 ILCS 55-1035.1 should be sustained.

21

The Counties’ argument is grounded on the Affidavit of DuPage

County Engineer Karl D. Fry and its attachments. Absent that

testimony, the Counties’ argument is without any substantiation. The

trial court correctly struck the Fry Affidavit and its supporting

“documentation.” However, even if the assertions made in the Fry

Affidavit are allowed to stand, the Counties’ argument still falls far

short of demonstrating a rational basis for the challenged classification

scheme.

The Counties modestly suggested that "the affiant could have

disclosed more facts upon which his opinion was based.” In fact, Mr.

Fry was competent to testify on almost none of the matters covered by

the affidavit.

2. The Population Argument

The Counties argument depends upon a semantic and statistical

sleight of hand. Their position is that at the time of the passage of

Public Act 86-16, DuPage, Kane and McHenry counties were the

fastest growing counties in the State of Illinois.

This statement is true, according to the table attached to the Fry

Affidavit, only in one sense: The three counties had the highest

percentage change in population of the seventeen counties included in

the survey. However, if the counties (other than Cook County) were

arrayed by absolute change in population, the ordering would be:

DuPage (net growth: 101,942); Lake (net growth: 54,912); Kane

(38,395); McHenry (23,203); and Will (22,240). Under the latter

analysis of "growth rate," Lake County certainly should be included in

a classification of “fastest growing Illinois counties" and, given the

range of error present in all census data, extrapolations from census

22

data, and estimated population counts, Will County should also be

included.’

Even supposing that the Counties have selected the appropriate

measure of "growth," and further supposing that the Counties have

presented competent evidence of that growth, however, the argument

from statistics is still unavailing, as nothing in the Counties’ argument

shows that its data were available to the General Assembly when P.A.

86-16 was enacted or that the data had even been prepared by that

time. Plaintiffs have previously assumed that the most recent census

data that would have been available to the legislature in 1989 was the

results of the 1980 federal census. The Counties produced population

"estimates" (without disclosing the identity or credentials of the

estimator) for the years 1985, 1986, 1987 and 1988.

Cases involving disputes over the accuracy of the decennial census

teach that there is a lag time between the taking of a census and the

publication of the results.* Here, because of the anonymous nature of

the population table attached to the Fry Affidavit, there is simply no

, All population measurements, including the decennial federal census, are inaccurate

to some degree. Tucker v. U.S. Dept. of Commerce, 958 F.2d 1411, 1413 (7th Cir.

1992). The population estimates appended to the Fry Affidavit and apparently relied

upon by Intervening Defendant show that McHenry County gained 23,203 inhabitants

between 1980 and 1987 while Will County gained 22,240. The difference in growth

is only 963, .56% of the total population of McHenry County and .28% of the total

population of Will County. Thus the “difference” which purportedly distinguishes

McHenry County from Will County is well within the range of error that typifies

population measurements and, therefore, without statistical significance sufficient to

justify a distinction between McHenry and Will Counties based on population growth.

Purther, neither the Counties nor their affiamt have produced credentials that

establish their expertise in the field of statistics; their assertions and inferences are

flawed both for lack of competence and lack of intellectual and statistical rigor.

8 See, ¢.g., Ambach v. Bell, 686 F.2d 974, 977-78 (D.C. 1982).

23

way of knowing when the “populations” reported were measured or

when the results of those measurements were published. Consequently,

no inference can be drawn that there was any current population data

available to the legislature in 1989, much less estimates of 1985, 1986,

1987 or 1988 populations. Nor have the Counties produced any other

contemporaneous evidence that "at the time of the passage of Public

Act 86-16" the legislature focused on the "fact" that "DuPage, Kane,

and McHenry counties [but not Lake County] were the fastest growing

counties in the State." A less strained theory is that the legislature

simply shared in the "common knowledge” that Northeast Illinois is the

fastest growing [area] in the state.’

In short, even if the results of semantic and statistical hair-splitting

can be said to constitute a rational basis for the classification scheme

of the statute, there is simply no evidence to show that the legislature

either had the data or used it. Moreover, if the legislature did intend

to draw classifications based on the criteria suggested by the Counties,

it could have written the statute to grant taxing powers to counties

having the largest percentage population growth, define the relevant

measures and provide for repeal of the power if the population growth

were to cease, or provide an automatic repealer at some defined time

in the future when the legislature could re-evaluate the assumed

9 In contrast, the Lifelines to the Economy study was available to the legislature in

the Spring of 1989. That contemporaneously available publication is notably lacking

in discussion of population data but abundantly documents the problem of urban

roadway congestion.

24

criterion.” Instead, the legislature provided a taxing power in

perpetuity whether or not the three named counties remain (allegedly)

the three fastest growing counties in the state.

Last, the Counties have not shown any direct correlation between

population increase and a need for additional taxing power for road

purposes sufficient to justify the legislation.

3. The Insufficiency Of The Fry Affidavit

Illinois Supreme Court Rule 191(a) states criteria which ensure the

competency and trustworthiness of statements contained in affidavits

given in support of a motion for summary judgment. Solon v.

Godbole, 163 Ill.App.3d 845, _, 516 N.E.2d 1045, 1049 (3rd Dist.

1987). Supreme Court Rule 191(a) states:

... . Affidavits in support of and in opposition to a motion for

summary judgment under section 2-1005 of the Code of Civil

Procedure . . . shall be made on the personal knowledge of the

affiants; shall set forth with particularity the facts upon which the

claim, counterclaim or defense is based; shall have attached

thereto sworn or certified copies of all papers upon which the

affiant relies; shall not consist of conclusions but of facts

admissible in evidence; and shall affirmatively show that the

affiant, if sworn as a witness, can testify competently thereto.

If all of the facts to be shown are not within the personal

knowledge of one person, two or more affidavits shall be used.

ILCS, S.Ct. Rule 191(a).

10 For this reason, the Counties’ reliance upon People ex rel. County of DuPage v.

Smith, 21 Ill.2d 572, 173 N.E.2d 485 (1961) is misplaced. Nothing in Smith approves

of the kind of micro-analysis of demographic trends that Intervening Defendant

recommends. On the contrary, the Smith court simply noted that the classification

criteria appeared on the face of the challenged statute (namely, contiguity to a county

having a population greater than one million) and held that " ‘proximity to great centres

of population’ may present a reasonable basis for classification, particularly where

matters of health are concerned." 173 N.E.2d at 489. Smith is not authority for the

proposition that just three of the five collar counties constitute a cognizable class, as

the Counties suggest.

25

The Fry Affidavit satisfied none of the requirements of Supreme

Court Rule 191(a). Fry, the affiant, states that he is the county

engineer for DuPage County. The statutory duties of a county engineer

do not include the conducting of demographic analyses. Thus, Fry is

not qualified as an expert in matters of demographics, absent a further

demonstration of such qualifications. Fry makes no claim to training,

practical expertise or even general knowledge in this field. Yet, Fry

"testifies" to the population trends in DuPage County as well as Lake,

Kane and McHenry Counties.

Fry states that he is the county engineer for DuPage County and

that, in that capacity, "he is familiar with the highway systems of

DuPage and surrounding counties." Fry then states that between 1980

and 1987 DuPage, Kane and McHenry Counties experienced the

highest percentage of population growth in the State exclusive of Cook

County. He also states that DuPage, Lake, Kane and McHenry

Counties experienced the highest numerical growth in population

between 1980 and 1987.

Attached to the Affidavit are a bar graph entitled “Population

Change in Illinois Counties over 100,000: 1980 to 1987" and an

untitled and unpaginated table. The Affidavit makes absolutely no

reference to these attachments. However, as the Affidavit provides no

other basis for Fry’s assertions about relative county population growth

rates (the possession of such knowledge not being among the statutory

duties of a county engineer nor being within the scope of affiant’s

knowledge of "the highway systems of DuPage County and surrounding

counties”), the attachments are, presumably, the basis of the statements

made.

26

The column headings of the table state that the populations listed are

"estimated." Neither the Affidavit nor the attachments disclose the

identity or qualifications of the estimator nor the date when the

estimates were made. Fry does not claim authorship. The data

presented are not identified as federal census data. The data are

therefore of unknown provenance and were properly stricken."

The trial court, after reviewing the additional arguments of the

Counties, stated:

Supreme Court Rule 191 requires that affidavits "shall be made

on the personal knowledge of the affiants, shall set forth with

particularity the facts upon which the . . . defense is based; shall

have attached thereto sworn or certified copies of all papers upon

which the affiant relies; shall not consist of conclusions but of

facts admissible in evidence; and shall affirmatively show that

the affiant, if sworn as a witness, can testify competently

thereto”.

Nothing has been submitted to this Court to alter its previous

opinion that the Affidavit of Karl Fry should be stricken. The

meticulous analysis of the plaintiffs underscoring the deficiencies

of the affidavit are in accord with the Court’s opinion. The

affidavit violates the mandate of Supreme Court Rule 191.

The graph and table are not incorporated by reference in the

affidavit. No sworn or certified copies are attached. They are

simply included without explanation. Hence, any portions of an

affidavit which refer to or rely upon such documentation are to

be stricken. As the plaintiffs correctly state, "the data are

therefore of unknown provenance and should be stricken".

The affidavit submitted failed to meet the requirement for such

documents as set forth in Supreme Court Rule 191. When the

1! The data set is also incomplete. The graph and table survey the populations of

seventeen counties. Neither the affidavit nor the attachments explain why only

seventeen of the 102 counties of Illinois were sampled.

27

affidavit and accompanying documents are stricken, there is no

factual evidence to sustain DuPage County’s motion for summary

judgment.

Op. 4/2/92, pp. 11-12.

Il.

THE ILLINOIS SUPREME COURT VIOLATED

PETITIONERS’ DUE PROCESS RIGHTS

BY RELYING ON A MERE CONJECTURE

The Illinois Supreme Court took as true matters that had been

properly excluded from the record, namely the population changes in

the counties of Illinois from 1980-87. The Illinois Supreme Court

never overturned the decision of the trial court in twice excluding that

data. Petitioners, therefore, lost this case for failing to disprove a mere

conjecture. See the discussion in I above. Thus, if bald-faced lies or

just plain untruths are presented, without any foundation or basis, to a

court in defense of an equal protection challenge, the plaintiff will be

put to the test of negating all such proposals that can be conceived by

the ever-imaginative mind of man. If that be the rule, then due process

of law becomes a sham. This Court should require more of defen-

dants, as it does in all other areas of law. See, e.g., the views

expressed by Justice Stevens in dissent as well as concurrence in United

States R.R. Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453,

61 L.Ed. 368 (1980); Nordlinger v. Hahn, 50S U.S. ___, 112 S.Ct.

___, 120 L.Ed.2d 1 (1992); and Lehnhausen v. Lake Shore Auto Parts,

410 U.S. 356, 935 S.Ct. 1001, 35 L.Ed.2d 351 (1973).

WER EOR ALOMAR RGAE ANN IN NEIOE RENT M tHe RS Nu bgt be

OS Rd

ve Lao

~okah Lora aOR

28

CONCLUSION

Wherefore, the Petitioners ask this honorable Court to grant their

Petition for Writ of Certiorari and, upon full briefing and oral

argument, reverse the decision of the Illinois Supreme Court.

Dated: January 3, 1995.

Respectfully submitted,

Myron M. Cherry*

Cherry & Flynn

30 North LaSalle Street

Suite 2300

Chicago, Illinois 60602

(312) 372-2100

Robert L. Sklodowski

Sklodowski, Franklin, Puchalski

& Reimer

111 West Washington Street

Suite 1000

Chicago, Illinois 60602

(312) 201-8202

Lee J. Schwartz

30 North LaSalle Street

Suite 2300 :

Chicago, Illinois 60602

(312) 553-5050

Attorneys for Petitioners

* Counsel of Record

Appendix 1-1

641 N.E.2d 360

161 Ill.2d 409

Connie CUTINELLO et al., Appellees,

Vv.

Douglas L. WHITLEY, Director of Revenue, et al.

(County of Kane et al., Appellants) (sic).

No. 75468.

Supreme Court of Illinois.

May 19, 1994.

Dissenting Opinion of Justice

Freeman June 1, 1994.

Rehearing Denied Oct. 3, 1994.

David R. Akemann, State’s Atty., and J. Patrick Jaeger, Asst.

State’s Atty., St. Charles, James Ryan, State’s Atty., Mark Shannahan,

Asst. State’s Atty., and Edward A. Burmila, Special Asst. State’s

Atty., Wheaton, and Gary W. Pack, State’s Atty., and Mary Kay

Walter, Asst. State’s Atty., Woodstock, for appellants.

Myron M. Cherry, Cherry & Flynn, P.C., Robert L. Sklodowski,

Sklodowski, Franklin, Puchalski & Reimer, and Lee J. Schwartz,

Chicago, for appellees.

Justice NICKELS delivered the opinion of the court:

Plaintiffs, as purchasers and retailers of motor fuel in Du Page,

Kane, and McHenry Counties (Counties), brought a class action suit in

the circuit court of Cook County challenging the constitutionality of the

County Motor Fuel Tax Law (Ill.Rev.Stat.1991, ch. 34, par. 5-

Appendix 1-2

1035.1). This statute allows the counties of Du Page, Kane, and

McHenry to impose a tax on individuals who sell motor fuel at retail

in the respective counties. The trial court found the statute unconstitu-

tional and ordered that taxes collected by the Illinois Department of

Revenue be placed in a special fund to be disbursed to plaintiffs. The

Counties appealed directly to this court. (134 Ill.2d R. 302(a).) We

reverse.

I. Background

In 1989, the General Assembly passed Public Act 86-16. The Act

addresses statewide transportation needs and provides assistance to the

different areas of the State. The County Motor Fuel Tax Law is part

of this act. It provides, in pertinent part: |

"The County board of the counties of Du Page, Kane and

McHenry may, by an ordinance or resolution adopted by an

affirmative vote of a majority of the members elected or appointed

to the county board, impose a tax upon all persons engaged in the

county in the business of selling motor fuel, as now or hereafter

defined in the Motor Fuel Tax Law, at retail for the operation of

motor vehicles upon public highways or for the operation of

recreational watercraft upon waterways. * * * The tax may be

imposed in half-cent increments, at a rate not exceeding 4 cents per

gallon of motor fuel sold at retail within the county for the purpose

of use and consumption and not for the purpose of resale. The

proceeds from the tax shall be used by the county solely for the

purpose of operating, constructing and improving public highways

and waterways, and acquiring real property and right-of-ways for

public highways and waterways within the county imposing the tax.

A tax imposed * * * shall be administered, collected and enforced

by the Illinois Department of Revenue * * *." (Ill.Rev.Stat.1991,

ch. 34, par. 5-1035.1.)

Pursuant to the authority granted by the statute, the county boards of

Du Page, Kane and McHenry Counties approved ordinances imposing

Appendix 1-3

a fuel tax per gallon on motor fuel sold at retail. Under the statutory

scheme, the Department of Revenue collects the tax and then distributes

it to the Counties.

On March 8, 1992, plaintiffs initiated this class action proceeding.

Their complaint, as amended, seeks injunctive relief against defendants,

the Director of Revenue, the Comptroller of the State of Illinois, the

Treasurer of the State of Illinois, Du Page County, as an intervening

defendant, and the counties of Kane and McHenry. In count I,

plaintiffs allege that the statute violates the special legislation and

reasonable classification provisions of the Illinois Constitution (Ill.

Const.1970, art. IV, § 13; Ill. Const.1970, art. IX, § 2). Plaintiffs

also allege in count I that the statute violates the equal protection

provisions of the State and Federal Constitutions (Ill. Const. 1970, art.

I, § 2; U.S. Const., amend. XIV). In counts II and III, plaintiffs

allege that the General Assembly violated the single-subject and three-

readings requirements of the Illinois Constitution (Ill. Const. 1970, art.

IV, § 8(d)) when it enacted the statute. Plaintiffs requested a perma-

nent injunction from the circuit court to enjoin future collection of the

taxes. Plaintiffs further requested a preliminary injunction requiring

that any taxes collected by the Department of Revenue be placed in a

special fund.

On November 10, 1992, the trial court issued a "Memorandum of

Decision.” In the memorandum, the trial court found that the statute

violates the special legislation provision. Because the trial court found

the statute unconstitutional, it stated that the county ordinances passed

pursuant to the statute were invalid. The trial court did not address the

other unconstitutional challenges raised by plaintiffs. On November

IE ae Sart ee See ee tere

Appendix 1-4

20, based on the memorandum of decision, the trial court granted

plaintiffs’ request for a preliminary injunction. The trial court ordered

that all proceeds collected by the Department of Revenue pursuant to

the statute be placed in a special fund. The trial court also certified the

action as a class action with the class to be composed of purchasers and

sellers of motor fuel.

On January 22, 1993, plaintiffs filed a motion for a temporary

restraining order to prevent the Counties from spending fuel tax

proceeds disbursed to them by the Department of Revenue before the

preliminary injunction issued. In addition, plaintiffs requested that the

Counties be required to turn over all tax proceeds to the special fund.

The Counties asserted that turnover was improper because plaintiffs’

complaint sought only prospective relief. According to the Counties,

plaintiffs sought turnover from the Department of Revenue for current

taxes, not for back taxes from the Counties. Initially, the trial court

ordered McHenry County to turn over all tax proceeds to the court-

appointed trustee and restrained Kane and Du Page Counties from

spending any unobligated funds. Before the trial court entered a final

ruling on the matter, however, plaintiffs and Du Page County each

filed motions for summary judgment.

The trial court entered summary judgment for plaintiffs on April

6, 1993. The trial court again found the statute unconstitutional and

permanently enjoined defendants from collecting county motor fuel

taxes. The injunction has been stayed pending appeal. The trial court

denied plaintiffs’ motion for turnover of funds previously collected by

Du Page and Kane Counties and ordered that funds turned over by

McHenry be returned to McHenry County.

Appendix 1-5

On direct appeal, the Counties raise two issues:

(1) whether the trial court erred in finding the County Motor Fuel

Tax Law unconstitutional; and

(2) whether the trial court erred in certifying consumers as

members of the plaintiff class.

Plaintiffs have cross-appealed. Plaintiffs ask that the Counties turn

over the proceeds disbursed to the Counties before the preliminary

injunction issued. We find the County Motor Fuel Tax Law constitu-

tional. Therefore, we do not address the remaining issues.

II. Special Legislation

Plaintiffs first challenge the statute as violative of the special

legislation provision of the Illinois Constitution. We note that plaintiffs

also challenge the statute on the basis of equal protection and reason-

able classification in count I of their complaint. In their brief to this

court, plaintiffs acknowledge that the approach used to evaluate a

special legislation challenge is similar to the approach to evaluate the

other challenges alleged in count I. (See DeLuna ~, St. Elizabeth’s

Hospital (1992), 147 Ill.2d 57, 74-75, 167 Ill Dec. 1009, 588 N.E.2d

+1139.) Plaintiffs therefore address only the special legislation

challenge, and we do likewise.

The special legislation proscription of the Illinois Constitution

provides that "(t]he General Assembly shall pass no special or local law

when a general law is or can be made applicable." (Ill. Const. 1970,

art. IV, § 13.) Special legislation confers a special benefit or exclusive

privilege on a person or a group of persons to the exclusion of others

similarly situated. (Bridgewater v. Hotz (1972), 51 111.2d 103, 109-10,

281 N.E.2d 317.) The special legislation provision does not, however,

Appendix 1-6

prohibit classification. Its purpose is to prevent arbitrary legislative

classifications. Jn re Belmont Fire Protection District (1986), 111

Ill.2d 373, 379, 95 Tll.Dec. 521, 489 N.E.2d 1385.

It is well settled that review of a special legislation challenge is

governed by the same standard that applies to review of equal

protection challenges. (Nevitt v. Langfelder (1993), 157 Ill.2d 116,

125, 191 Ill.Dec. 36, 623 N.E.2d 281; DeLuna, 147 Ill.2d at 75, 167

Ill.Dec. 1009, 588 N.E.2d 1139; Bilyk v. Chicago Transit Authority

(1988), 125 Ill.2d 230, 236, 125 Ill.Dec. 822, 531 N.E.2d 1; In re

Belmont Fire Protection District, 111 I1.2d at 379, 95 Ill.Dec. 521,

489 N.E.2d 1385.) The statute at issue does not affect a fundamental

right or involve a suspect or quasi-suspect classification. Thus, the

appropriate standard for review is the rational basis test. (Nevitt, 157

Ill.2d at 125, 191 Ill.Dec. 36, 623 N.E.2d 281.) Under this standard,

a court must determine whether the classification at issue is rationally

related to a legitimate State interest. (Bilyk, 125 Ill.2d at 236, 125

Ill.Dec. 822, 531 N.E.2d 1.) To be constitutional under this inquiry,

there must be some rational basis for the classification. (Jn re Belmont

Fire Protection District, 111 111.2d at 380, 95 Ill.Dec. 521, 489 N.E.2d

1385.) Whether a rational basis exists for a classification presents a

question of law, which we review de novo.

When evaluating a classification, a reviewing court considers the

broad discretion of the legislature to create statutory classifications for

the general welfare. (Bilyk, 125 Ill.2d at 236, 125 Ill.Dec. 822, 531

N.E.2d 1.) Thus, classifications made by the legislature are presumed

valid, and any reasonable doubts must be resolved in favor of uphold-

ing them. (Bilyk, 125 Ill.2d at 235, 125 Ill.Dec. 822, 531 N.E.2d 1.)

Appendix 1-7

Further, a statute will be upheld "if any set of facts can be reasonably

conceived which justify distinguishing the class to which the law

applies from the class to which the statute is inapplicable. (Bilyk, 125

Ill.2d at 236, 125 Ill.Dec. 822, 531 N.E.2d 1.) Our review in this

regard is therefore deferential, and plaintiffs have the burden of

establishing the unreasonableness of the legislative action. DeLuna,

147 Til.2d at 67, 167 Ill.Dec. 1009, 588 N.E.2d 1139.

The Counties argue that the General Assembly has made a

classification based on the rapid population growth of Du Page,

McHenry, and Kane Counties in northeastern Illinois. The Counties

contend that, at the time the legislation was passed, these three counties

were the fastest growing counties in the State. According to the

Counties, this growth has created a need for building, maintenance, and

repair of the Counties’ highway systems to a greater degree than exists

in counties in other parts of the State. The County Motor Fuel Tax

Law, the Counties maintain, is a reasonable means by which to fund

necessary transportation projects.

This court has long recognized that a legislative classification may

be based on population. (See, e.g., Nevitt, 157 Ill.2d 116, 191 Ill.Dec.

36, 623 N.E.2d 281 (statute involving disability payments did not apply

to home rule units with populations over one million); People ex rel.

Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 I1.2d 210,

306 N.E.2d 7 (statute involving tax rates only applied to race tracks

located with 100 miles of cities with one million population or in

counties of 500,000 population); Bridgewater, 51 Ill.2d 103, 281

N.E.2d 317 (statute involving election of county board members

applied only to counties with a township form of government and a

Appendix 1-8

population of three million or less).) In addition, population and

territorial differences constitute reasonable bases for addressing

transportation and traffic problems. See, e.g., People ex rel. Curren

v. Wood (1945), 391 Ill. 237, 62 N.E.2d 809.

Initially, plaintiffs argue that the statute is invalid because the

legislative action is specifically focused on Du Page, Kane, and

McHenry Counties. Legislation, however, is not rendered special

simply because it operates in only one part of the State. For example,

in Chicago National League Ball Club, Inc. v. Thompson (1985), 108

Ill.2d 357, 91 Ill.Dec. 610, 483 N.E.2d 1245, this court upheld a

classification which subjected Wrigley Field to noise emission

regulations promulgated by the Illinois Pollution Control Board. The

classification included all stadia in cities with populations in excess of

one million that were used for nighttime sporting events. Wrigley

Field, although not named in the statute, was the focus of the legisla-

tion. In upholding the statute, this court considered a number of

factors, such as population density, road congestion, and adjoining land

uses, which justified treating Wrigley Field differently from stadia in

other parts of the State.

In People ex rel. County of Du Page v. Smith (1961), 21 ILl.2d

572, 173 N.E.2d 485, this court upheld a classification which included

those counties contiguous to another county with a population over one

million. The legislature authorized these counties to construct sewage

facilities and to issue bonds to finance the facilities. Again, the court

concluded that the “collar” counties around Cook County were the

focus of the legislation. The statute was rational because of the

“unique population and territorial combination giving rise to sewage

Appendix 1-9

and population problems of unusual magnitude and urgency." (Smith,

21 Ill.2d at 579, 173 N.E.2d 485.) Thus, legislative action that focuses

on a specific area of the State will be upheld if a rational basis exists

for distinguishing that area from the rest of the State.

Plaintiffs, however, contend that the legislature did not state its

rational basis or make legislative findings regarding population growth

and the need for transportation funding in the Counties. The rational

basis test does not require such an explanation. It requires only that

there be a reasonable relationship between the challenged legislation

and a conceivable, and perhaps unarticulated, governmental interest.

Nordlinger v. Hahn, (1992), 505 U.S. , , 112 S.Ct. 2326,

2334, 120 L.Ed. 2d 1, 15-16 ("Equal Protection Clause does not

demand for purposes of rational-basis review that a legislature or

governing decisionmaker actually articulate at any time the purpose or

rationale supporting its classification"); accord United States R.R.

Retirement Board v. Fritz (1980), 449 U.S. 166, 179, 101 S.Ct. 453,

461, 66 L.Ed.2d 368; McDonald v. Board of Election Commissioners

(1969), 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739,

745-46.

Plaintiffs argue that, in any event, the statute should have included

Lake and Will Counties. Lake and Will Counties, like the three

counties named in the statute, are adjacent to Cook County in north-

eastern Illinois and, according to plaintiffs, were similarly experiencing

rapid population growth at the time the legislation was passed.

Plaintiffs therefore argue that all five counties are similarly situated and

that the difference in treatment by the legislature is irrational. Plaintiffs

do not argue that Cook County should have been included in the

Appendix 1-10

statute. Cook County is a home rule unit with its own authority to pass

a motor fuel tax.

The Counties rely on unauthenticated statistics to suggest that the

legislative action is rational. According to the Counties, between 1980

and 1987, Du Page, Kane, and McHenry Counties were the three

fastest growing counties in the State in terms of percentage growth.

Plaintiffs do not dispute the rapid population growth in the northeastern

part of the State. Plaintiffs, however, argue that, in terms of percent-

age growth, Lake and Will were growing nearly as fast as the Coun-

ties. Lake, like the Counties, experienced double-digit percentage

growth, although it did rank behind them. Plaintiffs argue that, in

terms of absolute population growth, Lake County was ranked second

although the Counties were the other top ranking counties. Thus,

according to plaintiffs, Lake is similarly situated to the Counties, and

any classification excluding Lake County is irrational.

The legislature is generally given great flexibility in addressing the

different needs throughout the State. Classification is an inevitable

consequence of this flexibility. Classification "requires that some

persons who have an almost equally strong claim to favored treatment

be placed on different sides of the line, and the fact [that] the line

might have been drawn differently at some point is a matter for legis-

lative, rather than judicial, consideration.’" (Federal Communications

Comm’n v. Beach Communications, Inc. (1993, 508 U.S. F ,

113 S.Ct. 2096, 2102, 124 L.Ed.2d 211, 223, quoting Fritz, 449 U.S.

at 179, 101 S.Ct. at 461, 66 L.Ed.2d at 378-79.) Thus, it is presumed

that the legislature “acted conscientiously and did their duty in making

a survey of the conditions prevailing in the [counties] of the State

Appendix 1-11

before enacting the classification legislation.” In re Belmont Fire

Protection District, 111 Ill.2d at 380, 95 Ill.Dec. 521, 489 N.E.2d

1385.

Under the rational basis test, mathematical precision in creating a

classification is not required. (Nevitt, 157 Il1.2d at 130, 191 Ill.Dec.

36, 623 N.E.2d 281.) Review of statistics will always reveal another

county that could have been included in a classification. For this

reason, "a legislative choice is not subject to courtroom factfinding and

may be based on rational speculation unsupported by evidence or

empirical data." (Beach Communications, Inc., 508 U.S. at __, 113

S.Ct. at 2102, 124 L.Ed.2d at 222.) Transportation problems may

exist to a lesser degree in other parts of the State than in the Counties.

However, "the legislature is not bound to pass one law meeting every

exigency, but may consider degrees of evil.” Smith, 21 Ill.2d at 579,

173 N.E.2d 485.

Ultimately, it is plaintiffs’ burden to show that a classification is

unreasonable, not the Counties’ burden to show that the classification

is reasonable. Plaintiffs have failed to rebut the Counties’ population

argument. Plaintiffs argue that the legislature could better address

transportation needs by basing its classification on congestion factors,

not population growth. Under the rational basis test, however, a

reviewing court will determine only whether a rational basis exists for

the legislative action, not the wisdom of the classification. (Beach

Communications, Inc., 508 U.S. at __, 113 S.Ct. at 2101, 124

L.Ed.2d at 221.) In any event, plaintiffs’ own statistics show that the

worst congestion problems exist in the northeastern part of the State.

They also show that the Counties rank high in terms of urban conges-

Appendix 1-12

tion based on miles of congested roadway and the cost of relieving the

congestion.

We therefore find that the legislative action in question satisfies the

rational basis test. The legislature rationally concluded that a greater

need for transportation financing existed in Du Page, Kane, and

McHenry Counties than in other parts of the State. To hold otherwise

would make it more difficult for the General Assembly to pass

legislation addressing the transportation needs of specific geographic

areas of the State. Transportation needs, by their nature, involve

territorial differences. Requiring more than a rational basis for such

legislative action is unwarranted.

Ill. Single-Subject Requirement

Plaintiffs next challenge the County Motor Fuel Tax Law on the

basis of the single-subject requirement. Specifically, plaintiffs argue

that Public Act 86-16, which includes the County Motor Fuel Tax Law,

violates the single-subject requirement of the Illinois Constitution. The

Constitution provides that "[b]Jills, except bills for appropriations and

for the codification, revision or rearrangement of laws, shall be

confined to one subject.” (Ill. Const.1970, art. IV, § 8(d).) Plaintiffs

argue that Public Act 86-16 encompasses a number of provisions that

do not relate to any one subject. These provisions involve the county

motor fuel tax, the State motor fuel tax, regulation of the Illinois

Department of Transportation, funding for the Regional Transportation

Authority, and the development of public transportation.

The number of provisions in an act is not determinative of its

constitutionality. This court has often stated the approach for determin-

ing a violation of the single-subject rule:

°

S > - oR ee eee

Appendix 1-13

" ’The requirement of singleness of subject has been frequently

construed, and the applicable principles are settled. The term

"subject" is comprehensive in its scope and may be as broad as

the legislature chooses, so long as the matters included have a

natural or logical connection. An Act may include all matters

germane to a general subject, including the means reasonably

necessary or appropriate to the accomplishment of legislative

purpose. Nor is the constitutional provision a limitation on the

comprehensiveness of the subject; rather, it prohibits the

inclusion of “discordant provisions that by no fair intendment can

be considered as having any legitimate relation to each oth-

er." ’ " (People ex rel. Ogilvie v. Lewis (1971), 49 Ill.2d 476,

487, 274 N.E.2d 87, quoting People ex rel. Gutknecht v. City of

Chicago (1953), 414 Ill. 600, 607-08, 111 N.E.2d 626.)

The single-subject requirement is therefore construed liberally and is

not intended to handicap the legislature by requiring it to make

unnecessarily restrictive laws. For this reason, courts have often

upheld legislation involving comprehensive subjects. See, e.g.,

Advanced Systems, Inc. v. Johnson (1989), 126 Ill.2d 484, 129 Ill.Dec.

32, 535 N.E. 797 (real property taxation); People ex rel. Carey v.

Board of Education (1973), 55 Ill.2d 533, 304 N.E.2d 273 (schools);

see also Jn re Marriage of Thompson (1979), 79 I. App.3d 310, 34

Ill.Dec. 342, 398 N.E.2d 17 (domestic relations).

In this case, the various provisions of Public Act 86-16 have a

natural and logical connection to transportation. Plaintiffs argue that

Public Act 86-16 deals with financing as well as transportation and

therefore embraces two subjects. In enacting a bill, the legislature may

provide the means necessary to accomplish the legislative purpose.

Transportation systems rely heavily on taxation, and other financing

mechanisms, to maintain their operations. Thus, financing provisions

are reasonably necessary to the accomplishment of the legislative

purpose.

Appendix 1-14

IV. Three-Readings Requirement

Lastly, plaintiffs argue that Public Act 86-16 violates the three-

readings requirement of the Illinois Constitution. The Constitution

provides that "[a] bill shall be read by title on three different days in

each house." (Ill. Const.1970, art. IV, § 8(d).) Plaintiffs argue that

the legislature did not follow this procedure and therefore we should

invalidate the Act.

Illinois follows the enrolled bill doctrine. This doctrine provides

that once the Speaker of the House of Representatives and the President

of the Senate certify that the procedural requirements for passing a bill

have been met, "a bill is conclusively presumed to have met all

procedural requirements for passage." (Emphasis added.) (Geja’s Cafe

v. Metropolitan Pier & Exposition Authority (1992), 153 Il1.2d 239,

259, 180 Ill.Dec. 135, 606 N.E.2d 1212.) Thus, under the enrolled

bill doctrine, a court will not invalidate legislation on the basis of the

three-readings requirement if the legislation has been certified. In this

case, plaintiffs acknowledge that Public Act 86-16 was certified.

Plaintiffs argue that we should take this opportunity to reconsider

_ the use of the enrolled bill doctrine, relying on Geja’s Cafe, 153 Ill.2d

239, 180 Ill.Dec. 135, 606 N.E.2d 1212. In Geja’ Cafes, this court

noted that the General Assembly had not exercised much discipline in

following the three-readings requirement. Ultimately, however, this

court declined to abandon the enrolled bill doctrine. The Geja’s Cafe

court noted that the 1970 Constitutional Convention specifically

contemplated the use of the enrolled bill doctrine to prevent the

invalidation of legislation on technical or procedural grounds. (See 6

Record of Proceedings, Sixth Illinois Constitutional Convention 1386-

Appendix 1-15

87; see also Benjamin v. Devon Bank (1977), 68 Ill.2d 142, 145, 11

Ill.Dec. 270, 368 N.E.2d 878.) The Convention determined that the

legislature would police itself with respect to procedure. In Geja’s

Cafe, this court also noted that judicial review of legislative procedure

would raise a substantial separation of powers concern. We continue

to find these reasons persuasive and accordingly decline to abandon the

enrolled bill doctrine.

V. Conclusion

The statute at issue is part of a comprehensive transportation bill

that encompasses the entire State. The section of the bill allowing the

Counties to pass ordinances imposing a fuel tax is just one part of the

entire transportation assistance package. The danger that one part of

the State would be favored at the expense of other parts is not

implicated here. Ultimately, plaintiffs complain about the action their

counties have taken in passing ordinances imposing a fuel tax, as

permitted by statute. In this instance, their unhappiness is better

rectified through the democratic process at the county board level than

through an attack on the constitutionality of the enabling legislation.

For the foregoing reasons, we find that the County Motor Fuel

Tax Law is constitutional. We therefore reverse the judgment of the

circuit court and remand the cause to that court for further proceedings.

Reversed and remanded.

FREEMAN, J., dissents.

Justice FREEMAN, dissenting:

The majority holds that the County Motor Fuel Tax Law is

constitutionally valid. Because I believe that the act constitutes

impermissible special legislation, I respectfully dissent.

Appendix 1-16

Special legislation confers a special benefit or exclusive privilege

On a person or group of persons to the exclusion of other [sic] similarly

situated. (Bridgewater v. Hotz (1972), 51 Ill.2d 103, 109-10, 281

N.E.2d 317.) “It arbitrarily, and without a sound, reasonable basis,

discriminates in favor of a select group." (Emphasis omitted.) (Illinois

Polygraph Society v. Pellicano (1980), 83 Ill.2d 130, 137-38, 46

Ill.Dec. 574, 414 N.E.2d 458.) Prior to the 1970 constitution,

deference was accorded the legislature to determine whether a general

law could be made applicable. That deference has been largely

eliminated by article IV, section 13, of our current constitution. Under

article IV, section 13, whether a general law can be made applicable is

a matter for judicial determination. See Bridgewater, 51 Ill.2d at 110,

281 N.E.2d 317; People ex rel. East Side Levee & Sanitary District v.

Madison County Levee & Sanitary District (1973), 54 Ill.2d 442, 447,

298 N.E.2d 177.

When a law is attacked as special legislation, it is the duty of the

courts to decide whether the classification is unreasonable because it

preferentially and arbitrarily includes a class to the exclusion of all

others. (Jllinois Polygraph Society, 83 I11.2d at 138, 46 Ill.Dec. 574,

414 N.E.2d 458.) The majority states that “review of a special

legislation challenge is governed by the same standard that applies to

review of equal protection challenges," and that in this case, the court

must determine whether the classification at issue is rationally related

to a legitimate State interest. 161 Ill.2d at __, 204 Ill. Dec. at 139,

641 N.E.2d at 363.

Although not entirely clear from the majority opinion, determina-

tion of whether legislation violates the proscription against special

Appendix 1-17

legislation actually requires application of a two-pronged test. (Jn re

Belmont Fire Protection District (1986), 111 I11.2d 373, 380, 95

Ill.Dec. 521, 489 N.E.2d 1385.) It is not enough that the classification

bear a rational relation to the purpose to be attained by the legislation.

(In re Belmont, 111 Il1.2d at 380, 95 Ill.Dec. 521, 489 N.E.2d 1385.)

There must be a reasonable basis for the classification and, in addition,

the classification must bear a reasonable and proper relation to the

purposes of the act and the evil it seeks to remedy. (Jn re Belmont,

111 I11.2d 373, 95 Ill.Dec. 521, 489 N.E.2d 1385; Bridgewater, 51

Ill.2d at 111, 281 N.E.2d 317; Du Bois v. Gibbons (1954), 2 Ill.2d

392, 399, 118 N.E.2d 295.) If relation to purpose were the only

relevant inquiry, special legislation could always be sustained,

regardless of how arbitrary the distinction between the classes.

"The legislature cannot create a class through the medium of an

arbitrary statutory declaration in order that the class may be the

recipient of special and exclusive legislative favors." (Jn re Belmont,

111 11.2d at 380, 95 Ill.Dec. 521, 489 N.E.2d 1385, citing People v.

Brown (1950), 407 Ill. 565, 584, 95 N.E.2d 888.) For a statutory

classification to be valid, the classification must be based upon a

rational difference of situation or condition found to exist in the persons

or objects upon which the classification rests. (Jn re Belmont, 111

Ill.2d at 380, 95 Ill.Dec. 521, 489 N.E.2d 1385.) It is my opinion that

the classification here is an arbitrary distinction not founded upon any

substantial difference of situation or condition and it is, therefore,

violative of article IV, section 13, of our constitution.

The act provides no reason as to why only Du Page, Kane and

McHenry Counties are covered under the act. The act merely names,

Appendix 1-18

without any qualifying characteristics, the three counties included

within its scope. In argument to this court, the Counties suggest that

conferfal of the right to tax is because Du Page, Kane and McHenry

Counties are the fastest growing counties in the State.

Certainly as the majority points out, no reason for a classification

need be stated. Where some rationale is offered, however, we are not

required to ignore it. That being the case, I find a portion of the

legislative debates provided in the record to be relevant. The legisla-

tors made no mention of rapid growth as the basis for their distinction.

They did, however, comment on the desire for economic development

in the State and that improved roadways would entice business within

the State’s borders. (See 86th Ill.Gen.Assem., Senate Proceedings,

June 30, 1989, at 256, 257.) Notably, Senator Geo-Karis lent support

to the act, stating, "because you want to bring business and industry in

this county — in this State, and you’re not going to get it if you don’t

have adequate roads at least maintained well." 86th Ill.Gen.Assem.,

Senate Proceedings, June 30, 1989, at 309 (statements of Senator Geo-

Karis).

Without doubt, the second prong of the special legislation test is

satisfied. The gas tax will do just what it purports, with Du Page,

Kane and McHenry Counties being the primary beneficiaries of an

improved roadway system and ecunomic development. The problem

with the act, however, is that the first prong of the test — the basis for

the distinction between those blessed counties and those which have not

been included under the act — remains unsatisfied. If, in fact, the

purpose of the act is to enhance economic development in Illinois, there

can be no fair reason to limit participation to only three counties.

Appendix 1-19

As the majority correctly notes, the special legislation provision

does not prohibit all classification. It purports merely to prohibit

arbitrary legislative classifications. (161 Ill.2d at __, 204 Ill. Dec. at

139, 641 N.E.2d at 363.) I would agree with the majority that

mathematical precision in creating a classification is nct required. (See

161 1.2d at _, 204 Ill. Dec. at 1405, 641 N.E.2d at 364.) However,

in order to defeat a challenge to the reasonableness of a classification,

any distinction between classifications, for purposes of special

legislation analysis, must be founded upon a rational or substantial

difference of situation or condition. (See In re Belmont, 111 I11.2d at

382, 95 Ill.Dec. at 21, 489 N.E.2d 1385.) As related to the purposes

of this act, there is no substantial difference of situation which can

support this classification.

I also agree with the majority that legislation is not special merely

because it operates in only one part of the State. (See 161 Ill.2d at

__, 204 Ill.Dec. at 1405, 641 N.E.2d at 364.) In that regard, the

majority cites Chicago National League Ball Club, Inc. v. Thompson

(1985), 108 Ill.2d 357, 91 Ill.Dec. 610, 483 N.E.2d 1245, and People

ex rel. County of Du Page v. Smith (1961), 21 Ill.2d 572, 173 N.E.2d

485, in support. Clearly as the majority notes, there was a rational

basis for the classifications in those cases. I believe that what was

significant in determining that the legislation in those cases was not

impermissibly special, however, was that the enactments embraced all

those who occupied a like position to those included under the various

enactments.

As has been stated, it is the Counties’ argument that the act is

constitutionally permissible because of the rapid growth in Du Page,

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Appendix 1-20

McHenry, and Kane Counties. Plaintiffs’ response that Will and Lake

Counties also experienced rapid growth is answered with recognition

by the majority of the legislature’s flexibility in making classifications.

161 I.2d at _, 204 Ill. Dec at 11, 641 N.E.2d at 365.

The majority’s response merely begs the question. This court is

charged with the charged with the [sic] constitutional responsibility to

determine whether a general law can be made applicable. We can take

no refuge in the recitation of general legal principles in the avoidance

of our constitutional mandate. That the legislature is given "great

flexibility in addressing the different needs throughout the State" does

not give the legislature carte blanche to enact impermissibile special

legislation. Further, “this court cannot rule that the legislature is free

to enact special legislation simply because ’reform may take one step

at a time.’ " (Grace v. Howlett (1972), 51 Ill.2d 478, 487, 283

N.E.2d 474, quoting Williamson v. Lee Optical of Oklahoma, Inc.

(1955), 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563, 573.)

Finally, the principles that presumptions are in favor of the validity of

an act and that reasonable doubts are to be resolved in favor of its

validity cannot serve to frustrate the exercise of our constitutional

responsibility. (See Jn re Belmont, 111 Ill.2d at 386, 95 Ill.Dec. 521,

489 N.E.2d 1385.) Notwithstanding the legislature’s discretionary

powers, it remains the responsibility of this court to determine whether

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

§ 13.

In order for the act to survive the challenge of special legislation,

it must satisfy both prongs of the two-part test as enunciated in Jn re

Belmont, reasonable classification and a rational relation to the act’s

Appendix 1-21

purpose. Braden and Cohn, in their comparative analysis of the Illinois

Constitution, provide some guidance on the issue of reasonableness of

classifications. In that regard, they suggest that it is difficult to support

a classification applicable to cities in excess of 500,000 if there are

three large cities with populations of 468,000, 493,000, and 531,000,

respectively. However, if the third city was the only one on a lake and

if the purpose of the legislation was related in some way to the

presence of a lake, then a classification of coverage of cities over

500,000 bordering on a lake would be a rational one. The writers

further suggest that a bill applicable to cities over 95,000 but under

100,000 in population would be suspect, for there can hardly be a

legitimate purpose for singling out such a narrow population spread.

G. Braden & R. Cohn, The Illinois Constitution: An Annotated and

Comparative Analysis 209 (1969). See, e.g., Pettibone v. West

Chicago Park Commissioners (1905), 215 Ill. 304, 74 N.E. 387

(holding that the distinction between a park district whose limits are co-

extensive with a town and a park district in the city whose limits are

not co-extensive with the limits of a town is purely arbitrary and

without a rational basis).

The Counties argued that Du Page, Kane and McHenry Counties

are unique in that they were the fastest growing counties in the State

between the years 1980 and 1987. In support of this argument, they

presented evidence that between 1980 and 1987, Du Page, Kane and

McHenry Counties experienced the highest percentage of population

growth in the State. Additionally, the Counties presented evidence that

in that same period, those three counties experienced the highest

numerical population growth in the State.

Appendix 1-22

Attached to the Counties’ cross-motion for summary judgment are

two charts. The first chart, titled “Population Change in Illinois

Counties Over 100,000: 1980 To 1987," is a bar graph. The graph

purports to measure numerical population growth per county in Illinois.

The second chart is untitled and bears no page designation. That chart

purports to measure percentages of population growth for each Illinois

county from 1980 to 1988.

In my view, the Counties’ evidence supports the conclusion that

Lake County is similarly situated (double-digit percentage increase in

population and contiguity to Cook County) to the three counties

included within the scope of the act. The exclusion of Lake County

from coverage under the act presents a clear example of the arbitrari-

ness of the challenged classification.

Relying, purely for the sake of argument, on the Counties’

unauthenticated charts, it appears that from 1980 to 1988 the three

counties covered by the act experienced the following percentage

increases in population growth: Du Page—15.5%, McHenry—15.7%,

Kane—13.8%. For that same period, Lake County experienced a

12.5% increase. Clearly, Du Page, McHenry and Kane Counties had

the greatest percentages of population growth in comparison to Lake

and all other counties in the State. However, I am at a loss as to why

Kane County’s 13.8% increase, though greater than Lake County’s

12.5% increase, is any more significant than Lake County’s increase.

Further, I fail to understand why Kane County’s 13.8% increase

compares favorably for inclusion under the act with Du Page County’s

15.5% or McHenry County’s 15.7%, while Lake County’s 12.5% does

not similarly compare with Kane County’s 13.8%. I would conclude

Appendix 1-23

similarly with respect to those counties’ actual numerical growth for

that period. (Du Page—from 658,858 to 760,800; McHenry—from

147,897 to 171,100; Kane—from 278,405 to 316,800; Lake—from

440,388 to 495,300.)

There is no substantial difference in population growth between

Lake County and the three counties covered under the act. Accepting

the rapid-growth argument, however, what possible justification can

there be for excluding Lake County from coverage when its population

growth is a mere 1.3% behind that of Kane County?

I am not suggesting that the inclusion of Lake County under the

act would have any curative effect. The use of Lake County here is

merely exemplary of the arbitrariness of the classification. Any

Classification must have some reasonable basis.

“A law is general not because it embraces all of the governed, but

because it may, from its terms, embrace all who occupy a like position

to those included.” (Bridgewater, 51 Il1.2d at 111, 281 N.E.2d 317.)

In my view, the County Motor Fuel Tax Law, which merely names Du

Page, Kane and McHenry Counties as beneficiaries, creates an arbitrary

classification and, therefore, violates the special legislation proscription.

If, as the legislative debates suggest, the purpose of the act is to

encourage economic development in the State of Illinois, it should

matter little which county serves as the conduit for the benefit. A

general law could be made applicable.

For the reasons stated, I dissent.

Appendix 2-1

Illinois Supreme Court

Juleann Hornyak, Clerk

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

October 3, 1994

Mr. Myron M. Cherry

Cherry & Flynn

30 N. LaSalle St. $#2300

Chicago IL 60602

No. 75468 - Connie Cutinello Indv. et al. etc. appellees

v. Douglas L. Whitley Director of the Illinois

Department of Revenue et al. (County of Kane

et al. appellants). Appeal Circuit Court

(Cook).

The Supreme Court today DENIED the petition for rehearing in the

above entitled cause.

The mandate of this Court will issue to the appropriate Appellate Court

and/or Circuit Court or other agency on October 18 1994.