Wirtz v. Quinn , 2011 IL 111903 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
Wirtz v. Quinn, 2011 IL 111903
Caption in Supreme W. ROCKWELL WIRTZ et al., Appellees, v. PATRICK QUINN,
Court: Governor, et al., Appellants.
Docket No. 111903
Filed July 11, 2011
Held Video Gaming Act held not to violate the single-subject provision of
(Note: This syllabus the Illinois Constitution of 1970.
constitutes no part of the
opinion of the court but
has been prepared by the
Reporter of Decisions for
the convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the First District, reported at 407
Review Ill. App. 3d 776; heard in that court on appeal from the Circuit Court of
Cook County, the Hon. Lawrence O’Gara, Judge, presiding.
Judgment Appellate court judgment reversed; circuit court judgment affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Appeal Solicitor General, and Richard S. Huszagh, Assistant Attorney General,
of Chicago, of counsel), for appellants.
Sam Vinson, Floyd D. Perkins, Claudette P. Miller, Seth A. Horvath
and Patrick J. Hanlon, of Ungaretti & Harris LLP, of Chicago, for
appellees.
Marc R. Poulos, Kara M. Principe and Melissa L. Binetti, of
Countryside, for amicus curiae Indiana, Illinois, Iowa Foundation for
Fair Contracting.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Karmeier, and Theis concurred in the judgment and opinion.
OPINION
¶1 In this appeal, plaintiffs challenge the constitutionality of four public acts, Public Acts
96–34, 96–35, 96–37, and 96–38 (eff. July 13, 2009). The public acts at issue, comprising
three substantive bills and one appropriation bill, were enacted as part of a “capital projects”
plan and were signed into law by Governor Patrick Quinn on July 13, 2009.
¶2 The appellate court held that Public Act 96–34 violates the single subject clause of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 8(d)), and that the three remaining
public acts were invalid based on language making their enactment contingent on the
enactment of Public Act 96–34. 407 Ill. App. 3d 776.
¶3 For the reasons that follow, we reverse the judgment of the appellate court.
¶4 BACKGROUND
¶5 On August 25, 2009, plaintiffs, W. Rockwell Wirtz, on behalf of all taxpayers situated
in the State of Illinois, and Wirtz Beverage Illinois, LLC, filed a petition pursuant to section
11–303 of the Code of Civil Procedure (735 ILCS 5/11–303 (West 2008)) in the circuit court
of Cook County for leave to file their verified complaint seeking to restrain and enjoin the
disbursement of public funds by the defendant public officials. In their complaint, plaintiffs
alleged that Public Acts 96–34, 96–35, 96–37, and 96–38 violated various provisions of the
Illinois Constitution, including the single subject clause (Ill. Const. 1970, art. IV, § 8(d)); the
presentment clause (Ill. Const. 1970, art. IV, § 9(a)); the effective-date-of-laws clause (Ill.
Const. 1970, art. IV, § 10); veto procedures (Ill. Const. 1970, art. IV, §§ 9(b), (d), (e)); the
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separation of powers doctrine (Ill. Const. 1970, art. II, § 1); the public-funds-for-public-
purposes clause (Ill. Const. 1970, art. VIII, § 1(a)); the uniformity clause (Ill. Const. 1970,
art. IX, § 2); and the limitation on the subject of appropriation bills (Ill. Const. 1970, art. IV,
§ 8(d)).
¶6 On October 20, 2009, the circuit court denied plaintiffs’ petition. The court held that all
of plaintiffs’ claims failed as a matter of law and, therefore, there was no “reasonable
ground,” under section 11–303 of the Code of Civil Procedure, for allowing plaintiffs’
complaint to go forward.1 The circuit court denied plaintiffs’ motion for reconsideration.
¶7 The appellate court reversed. 407 Ill. App. 3d 776. The court held that Public Act 96–34
violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)),
because the provisions in the Act do not have a natural and logical connection to the single
subject of revenue. Accordingly, the court concluded that Public Act 96–34 was void in its
entirety. The court also held that Public Acts 96–35, 96–37, and 96–38 could not stand
because they were expressly contingent on the enactment of Public Act 96–34. The court did
not address the remaining constitutional issues raised by plaintiffs.
¶8 Defendants petitioned this court for leave to appeal as of right under Supreme Court Rule
317 (Ill. S. Ct. R. 317 (eff. July 1, 2006)) or, alternatively, as a matter of discretion under
Rule 315 (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)). This court granted defendants’ petition
for leave to appeal. We also granted leave to the Indiana, Illinois, Iowa Foundation for Fair
Contracting to submit an amicus curiae brief in support of defendants.
¶9 For the reasons that follow, we reverse the judgment of the appellate court. In the interest
of judicial economy, rather than remand the cause to the appellate court, we also address and
reject the remaining claims raised in plaintiffs’ complaint. Accordingly, we affirm the
judgment of the circuit court.
¶ 10 ANALYSIS
¶ 11 I. Single Subject Clause
¶ 12 The single subject clause of the Illinois Constitution provides, in relevant part: “Bills,
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).
¶ 13 The single subject rule regulates the process by which legislation is enacted, by
prohibiting a legislative enactment from “clearly embracing more than one subject on its
face.” Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 351 (1999); People v. Olender, 222 Ill.
2d 123, 131 (2005). One purpose of the single subject requirement is to preclude the passage
of legislation which, standing alone, would not receive the necessary votes for enactment.
1
We note that in the appellate court, plaintiffs argued that, under the “reasonable ground”
standard of section 11–303, the circuit court was limited to determining whether their complaint was
“frivolous or malicious” (Strat-O-Seal Manufacturing Co. v. Scott, 27 Ill. 2d 563, 566 (1963)) and
that, at this juncture, the court could not go beyond that determination and resolve their complaint
on the merits. Plaintiffs do not pursue this argument here.
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Olender, 222 Ill. 2d at 132; People v. Cervantes, 189 Ill. 2d 80, 83 (1999). This disfavored
practice is known as “logrolling,” or “bundling unpopular legislation with more palatable
bills, so that the well-received bills would carry the unpopular ones to passage.” People v.
Wooters, 188 Ill. 2d 500, 518 (1999). Thus, the single subject rule “ensures that the
legislature addresses the difficult decisions it faces directly and subject to public scrutiny,
rather than passing unpopular measures on the backs of popular ones.” Johnson v. Edgar,
176 Ill. 2d 499, 515 (1997). Another reason for the single subject rule is to promote an
orderly legislative process. Wooters, 188 Ill. 2d at 518. “ ‘By limiting each bill to a single
subject, the issues presented by each bill can be better grasped and more intelligently
discussed.’ ” Johnson, 176 Ill. 2d at 514-15 (quoting Millard H. Ruud, No Law Shall
Embrace More Than One Subject, 42 Minn. L. Rev. 389, 391 (1958)).
¶ 14 In determining whether a particular enactment violates the single subject rule, we
construe the word “subject” liberally in favor of upholding the legislation. Olender, 222 Ill.
2d at 132; Arangold, 187 Ill. 2d at 352. The subject may be as broad as the legislature
chooses. People v. Boclair, 202 Ill. 2d 89, 109 (2002); Johnson, 176 Ill. 2d at 515. However,
“while the legislature is free to choose subjects comprehensive in scope, the single subject
requirement may not be circumvented by selecting a topic so broad that the rule is evaded
as ‘a meaningful constitutional check on the legislature’s actions.’ ” Boclair, 202 Ill. 2d at
109 (quoting Johnson, 176 Ill. 2d at 515-18).
¶ 15 Neither the length of an act nor the number of provisions in an act is determinative of its
compliance with the single subject rule. Arangold, 187 Ill. 2d at 352; Cutinello v. Whitley,
161 Ill. 2d 409, 423 (1994). What is dispositive is whether the provisions in the act have a
“natural and logical connection” to the single subject. Boclair, 202 Ill. 2d at 109; Arangold,
187 Ill. 2d at 352. Thus, a piece of legislation violates the single subject rule when it contains
unrelated provisions that by no fair interpretation have any legitimate relation to the single
subject. Arangold, 187 Ill. 2d at 352.
¶ 16 A. Public Act 96–34
¶ 17 In count I of their complaint, plaintiffs allege that Public Act 96–34 violates the single
subject clause. Legislative enactments are presumed to be constitutional (Wooters, 188 Ill.
2d at 505; People v. Reedy, 186 Ill. 2d 1, 9 (1999)), and a party challenging the
constitutionality of a statute bears the burden of clearly establishing a constitutional violation
(People v. Dabbs, 239 Ill. 2d 277, 291 (2010)). The appellate court’s finding that a statute
is unconstitutional is reviewed de novo. People v. Burdunice, 211 Ill. 2d 264, 267 (2004);
People v. Sypien, 198 Ill. 2d 334, 338 (2001).
¶ 18 Public Act 96–34, entitled, “An Act concerning revenue,” contains the following
provisions.
¶ 19 Article 5 creates the Video Gaming Act. This legislation allows certain licensed
establishments, including establishments where alcoholic liquor is served for consumption,
fraternal establishments, veterans establishments, and truck stops, to conduct video gaming.
Article 5 sets forth rules for obtaining licenses and requirements for video game terminals.
It provides that the Illinois Gaming Board is responsible for testing and approving every
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licensed video game terminal. The article imposes a tax of 30% on all net income from video
gaming terminals. Of the taxes collected, five-sixths shall be deposited into the Capital
Projects Fund and one-sixth shall be deposited into the Local Governmental Video Gaming
Distributive Fund.
¶ 20 Article 800 creates the Capital Spending Accountability Law. This law requires the
Governor’s Office of Management and Budget to provide quarterly reports on the status of
all capital projects in the state to the Comptroller, the Treasurer, the President and Minority
Leader of the Senate, and the Speaker and Minority Leader of the House of Representatives.
¶ 21 Article 900, section 900, amends the Illinois Lottery Law (20 ILCS 1605/1 et seq. (West
2008)) to provide that the Department of Revenue will conduct the lottery with the assistance
of a private manager under a management agreement overseen by the Department. Section
900 also creates a pilot program allowing individuals to purchase lottery tickets on the
internet. The pilot program must be conducted pursuant to a contract with a private vendor.
Finally, section 900 requires that lottery proceeds be transferred monthly to the Common
School Fund in an amount equal to the corresponding month in 2009, adjusted for inflation,
and that any remaining proceeds be deposited yearly into the Capital Projects Fund.
¶ 22 Section 905 amends the State Finance Act (30 ILCS 105/1.1 et seq. (West 2008)) to
create the Capital Projects Fund as a special fund in the State Treasury. It provides that,
subject to appropriation, the Capital Projects Fund may be used only for capital projects and
the payment of debt service on bonds issued for capital projects. Section 905 also requires
certain transfers of money from the Capital Projects Fund to the General Revenue Fund, and
it provides that, beginning in fiscal year 2010, no road fund moneys shall be appropriated to
the Department of State Police or to the Secretary of State.
¶ 23 Sections 910, 915, 920, and 925 amend the Use Tax Act (35 ILCS 105/1 et seq. (West
2008)), the Service Use Tax Act (35 ILCS 110/1 et seq. (West 2008)), the Service
Occupation Tax Act (35 ILCS 115/1 et seq. (West 2008)), and the Retailers’ Occupation Tax
Act (35 ILCS 120/1 et seq. (West 2008)), respectively. These sections raise the tax rate on
the sale of candy, soft drinks, and grooming and hygiene products from 1% to 6.25%. Under
these amendments, the Department of Revenue must make monthly deposits into the Capital
Projects Fund, in amounts estimated to be 80% of the net revenue for the preceding month
realized from the sales of the above products.
¶ 24 Section 930 amends the Motor Fuel Tax Law (35 ILCS 505/1 et seq. (West 2008)) to
increase the amount of money to be transferred from the Motor Fuel Tax Fund to the Grade
Crossing Protection Fund.
¶ 25 Section 935 amends the University of Illinois Act (110 ILCS 305/0.01 et seq. (West
2008)), adding a new section requiring the University of Illinois at Urbana-Champaign to
conduct a study on the effect on Illinois families of purchasing lottery tickets. The section
provides that the university shall report its findings to the General Assembly on or before
January 1, 2011 (110 ILCS 305/12.5 (West 2010)).
¶ 26 Section 940 amends the Riverboat Gambling Act (230 ILCS 10/1 et seq. (West 2008)),
allocating responsibility for administration and enforcement of the Video Gaming Act to the
Illinois Gaming Board.
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¶ 27 Section 945 amends the Liquor Control Act of 1934 (235 ILCS 5/1–1 et seq. (West
2008)), increasing the taxes on manufacturers and importing distributors of beer, wine and
spirits. All of the proceeds of the additional taxes shall be deposited into the Capital Projects
Fund.
¶ 28 Section 950 amends the Environmental Protection Act (415 ILCS 5/1 et seq. (West
2008)) to provide that, with one exception, “the Underground Storage Tank Fund is not
subject to administrative charges authorized under Section 8h of the State Finance Act [30
ILCS 105/8h (West 2008)] that would in any way transfer any funds from the Underground
Storage Tank Fund into any other fund of the State.”
¶ 29 Section 955 amends the Illinois Vehicle Code (625 ILCS 5/1–100 et seq. (West 2008)),
increasing various motor vehicle fees and requiring that the proceeds of the increased fees
be deposited into the Capital Projects Fund. Section 955 also increases certain weight limits
for vehicles and loads and, at the same time, increases fines for overweight vehicles. The
proceeds of the additional fines are to be deposited into the Capital Projects Fund.
¶ 30 Section 960 amends the Criminal Code of 1961 (720 ILCS 5/28–1 et seq. (West 2008))
to provide that the criminal offenses of gambling and syndicated gambling do not include the
manufacture, distribution, or possession of video gaming terminals by licensed individuals;
lotteries conducted by a third party pursuant to a management agreement with the state; or
the purchase of lottery tickets through the internet under the program established in section
7.12 of the Illinois Lottery Law.
¶ 31 Finally, article 9999, section 9999, of Public Act 96–34 provides: “This Act takes effect
July 1, 2009, except that the changes to ***the Illinois Vehicle Code take effect January 1,
2010; but this Act does not take effect at all unless House Bill 312 of the 96th General
Assembly [enacted as Public Act 96–35], as amended, becomes law.”
¶ 32 The appellate court held that the single subject of Public Act 96–34 was revenue, based
on its official title, “An Act concerning revenue.” However, defendants assert before this
court that the single subject of Public Act 96–34 is capital projects. Defendants are not
limited solely to the contents of the title of an act in offering a single subject rationale.
Boclair, 202 Ill. 2d at 109-10; see also Olender, 222 Ill. 2d at 140. Moreover, capital projects
is a legitimate single subject, one which is not “so broad that the rule is evaded as ‘a
meaningful constitutional check on the legislature’s actions.’ ” Boclair, 202 Ill. 2d at 109
(citing Johnson, 176 Ill. 2d at 515-18).
¶ 33 Having determined that the subject of capital projects is legitimate, we must examine the
provisions in Public Act 96–34 to discern whether they have a “natural and logical
connection” to that subject. Sypien, 198 Ill. 2d at 338-39. In doing so, we find that the
substantive provisions in Public Act 96–34 clearly are connected to capital projects in that
they establish increased revenue sources to be deposited into the Capital Projects Fund. The
few provisions that do not directly raise revenue are still related to the overall subject of the
Act in that they help to implement the other provisions. “ ‘An act may include all matters
germane to a general subject, including the means reasonably necessary or appropriate to the
accomplishment of the legislative purpose.’ ” People ex rel. Ogilvie v. Lewis, 49 Ill. 2d 476,
487 (1971) (quoting People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600, 607-08
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(1953)).
¶ 34 For example, the provision in article 900, section 935, of Public Act 96–34, which
authorizes a study on the effect of the lottery on Illinois families, is related to the
amendments to the Illinois Lottery Law in article 900, including the establishment of a pilot
program to purchase lottery tickets on the internet. The legislature reasonably anticipated that
the amendments would result in additional sales of lottery tickets, with the extra proceeds
to be deposited into the Capital Projects Fund. Therefore, a study on the effect of greater
numbers of people buying lottery tickets is related to the implementation of these changes.
Similarly, the amendments to the Illinois Vehicle Code in article 900, section 955, increasing
certain vehicle weight limits, while not related to revenue, are related to the provisions
increasing the fines for violations of these limits. Although the weight limits are increased,
the amounts of most of the fines are doubled, which the legislature evidently believed would
result in a net increase of revenue to be deposited into the Capital Projects Fund.
¶ 35 According to plaintiffs, even assuming that the single subject of Public Act 96–34 is
capital projects, several provisions in the Act bear no relation to that subject because they
have the effect of allocating money to the General Revenue Fund rather than to the Capital
Projects Fund. We do not find plaintiffs’ argument persuasive.
¶ 36 First, plaintiffs allege that a portion of the tax revenue raised from the increased taxes on
soft drinks, candy, and grooming and hygiene products is directed to the Common School
Fund and the General Revenue Fund. Defendants respond that the recategorization of these
products from the 1% tax rate to the 6.25% rate results in 5% of the revenue generated by the
increased rate going to the Capital Projects Fund, 1% going to the Local Government Fund,
and 0.25% going to the County and Mass Transit District Fund, with no money going to the
General Revenue Fund. Defendants allege that this allocation was necessary because “doing
anything else with the additional 0.25% would have required a massive overhaul of the
current structure for processing the relevant sales and collecting the corresponding taxes.”
¶ 37 Secondly, plaintiffs point to article 900, section 905, of the Act, which authorizes
transfers of certain amounts of money from the Capital Projects Fund to the General Revenue
Fund, and also provides that, beginning in fiscal year 2010, no road fund moneys shall be
appropriated to the Department of State Police and to the Secretary of State. Plaintiffs argue
that the amounts to be transferred to the General Revenue Fund are much greater than, and
not offset by, the elimination of road fund diversions to pay for operations of the State Police
and Secretary of State. Defendants dispute the figures cited by the plaintiffs and allege that
the amounts of money are comparable.
¶ 38 Whether or not the plaintiffs are correct about the percentages going to the Capital
Projects Fund, it is not the function of this court to trace the origin and destination of every
dollar amount cited in Public Act 96–34. Rather, our task is to decide whether Public Act
96–34, as a whole, is devoted to a single subject and, therefore, constitutional. In doing so,
we bear in mind that the single subject rule is construed liberally and “is not intended to
handicap the legislature by requiring it to make unnecessarily restrictive laws.” Cutinello v.
Whitley, 161 Ill. 2d 409, 423 (1994). Applying that principle here, we see no provision in the
Act which stands out as being constitutionally unrelated to the single subject of capital
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projects.
¶ 39 We note, also, that previous decisions of this court which have struck down legislation
for violating the single subject rule are distinguishable. In People v. Olender, 222 Ill. 2d 123,
139 (2005), a bill in its original form amended three criminal statutes: the Cannabis and
Controlled Substances Tax Act (35 ILCS 520/14.1 (West 1994)), a provision in the Criminal
Code of 1961 dealing with the seizure and forfeiture of vehicles (720 ILCS 5/36–1 (West
1994)), and a provision in the Unified Code of Corrections concerning reimbursement of
expenses by convicted persons to the Department of Corrections (730 ILCS 5/3–7–6,
3–12–5, 5–8–1 (West 1994)). Following the addition of eight amendments, the bill created
two new statutes while amending numerous provisions in 24 other statutes, including several
tax acts, the Downstate Forest Preserve District Act (70 ILCS 805/18.6d (West 1994)), the
Charitable Games Act (230 ILCS 30/2, 4, 5 (West 1994)), and the Communicable Disease
Prevention Act (410 ILCS 315/2c (West 1994)). We rejected the State’s arguments that the
various provisions fit within the broad categories of either “governmental regulation” or
“revenue.” Olender, 222 Ill. 2d at 140-42. There was no natural and logical connection
between the multiple provisions in the bill and either of those subjects. We held that “[t]o
sanction such a strained connection between this statute and the subject of revenue to the
State and its subdivisions would render the single subject clause a nullity.” Id. at 142.
¶ 40 In another case, People v. Reedy, 186 Ill. 2d 1 (1999), the bill initially addressed the
single subject of the criminal insanity defense but eventually dealt with as many as five
separate legislative topics, involving both civil and criminal matters. Those topics included
the basic duties and jurisdiction of law enforcement officials; the burden of proof for a
criminal defendant asserting the insanity defense; civil and criminal rules governing drug
offense and drug asset forfeiture proceedings; truth-in-sentencing law; and rules for hospital
liens. Even when giving great deference to the legislature, we held that the contents of the
bill encompassed at least two unrelated subjects: matters relating to the criminal justice
system and matters relating to hospital liens. Id. at 12. The State’s argument that each of the
provisions fit within the category of “governmental matters” was not compelling. Id. at 12.
¶ 41 Finally, in Johnson v. Edgar, 176 Ill. 2d 499, 517 (1997), the enactment was held to be
an “egregious example of the legislature ignoring the single subject rule.” What started as
an 8-page bill became a 200-page bill, encompassing such diverse topics as child sex
offenders, employer eavesdropping, and environmental impact fees imposed on the sale of
fuel. Rejecting the State’s suggestion that the subject of the bill was “public safety,” we held,
“[w]ere we to conclude that the many obviously discordant provisions *** are nonetheless
related because of a tortured connection to a vague notion of public safety, we would be
essentially eliminating the single subject rule as a meaningful constitutional check on the
legislature’s actions.” Id. at 517-18.
¶ 42 In contrast to the cases described above, there are no “smoking gun” provisions in Public
Act 96–34 which clearly violate the intent and purpose of the single subject rule. On the
Act’s face, all of the provisions have a natural and logical connection to the single subject
of capital projects.
¶ 43 Furthermore, a review of the extensive legislative debate preceding the enactment of
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Public Act 96–34 supports our conclusion that the Act does not violate the single subject
clause. Given that the single subject rule is intended to “regulate[ ] the process by which
legislation is enacted” (Olender, 222 Ill. 2d at 131), it is useful to examine the legislative
debates conducted by the General Assembly. The following comments are representative of
many of the legislators’ remarks. Senator Cullerton, for example, stated:
“It’s been ten years since we’ve had a capital bill. The toughest part is coming up
with the money. *** It’s not easy voting for these taxes. Quite frankly, there’s parts
in here that I would prefer not be here, would–that would be substituted with other
parts. But it’s–when you work with different parties, different–the House and Senate,
you need to have compromise. And that’s what this is. *** We have measures here
dealing with video gaming and the Lottery. We have sales tax–streamlined sales tax
language that would generate more money by coming in conformity with the
streamlined sales tax. There are liquor taxes, and also vehicle-related tax increases
that are very similar to the ones that we did ten years ago when we had a successful
capital bill.” 96th Ill. Gen. Assem., Senate Proceedings, May 20, 2009, at 111-12
(statements of Senator Cullerton).
¶ 44 Senator Risinger stated:
“It’s not a perfect bill that we’re going to be looking at, but certainly it’s one that
we’ve worked together and–and made happen. There’s–the revenue that we’re going
to talk about to fund this, if any one of us was going to put this together, we would
probably put it together a little different way. But there’s things in it that we like and
maybe things that we don’t like. *** And we’re going to be able to address the real
needs of our infrastructure that has been suffering for such a long period of time.”
96th Ill. Gen. Assem., Senate Proceedings, May 20, 2009, at 112-13 (statements of
Senator Risinger).
¶ 45 Senator Dillard stated:
“Over here we’re not necessarily happy with all of the revenue sources that are in
here. *** I view capital as very different in terms of raising new revenues than I do
the operations of State government. And I have always supported every capital bill
that’s ever been put out here. There is one component of this particular package that
I really have trouble with. And that is the video poker side of things ***. *** But
most importantly, I think, like many of you, I have committed to my local chambers
of commerce, my local labor unions, my local newspapers, that I would support a
major capital bill. And I intend to do that today. This State is literally falling apart.”
96th Ill. Gen. Assem., Senate Proceedings, May 20, 2009, at 115-16 (statements of
Senator Dillard).
¶ 46 Representative Cross stated:
“I think it’s important to point out that this Bill happened because a lot of people
talked and a lot of people worked together. And it’s called compromise; it’s called
building consensus. I don’t like all of the revenue streams. I’m troubled by some of
them, but the reality is we would not have passed any capital Bill without some
revenue stream causing us some angst.” 96th Ill. Gen. Assem., House Proceedings,
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May 21, 2009, at 142 (statements of Representative Cross).
¶ 47 The legislative debate demonstrates that the legislators engaged in a detailed discussion
of many of the provisions in the bill. There is no evidence that any obviously unrelated
provisions were “tacked on” to the bill at a later time. Overall, the debate shows that the
legislators were aware that they were voting on sources of funding for capital improvements
to the state. By contrast, in Olender, where this court struck down a bill because of
logrolling, the debate revealed that legislators referred to the bill as “a short title, not *** a
good piece of legislation,” and “a flawed, omnibus bill.” Olender, 222 Ill. 2d at 142-43. One
Representative complained that there was no in-depth discussion of other, unrelated issues
which were “tacked onto” the bill. Id. at 143.
¶ 48 In the debate on Public Act 96–34, although a few legislators remarked that they disliked
some of the revenue sources, particularly video gaming, they also commented that the bill
was reached through compromise and with the goals of putting people back to work and
improving the state’s infrastructure. We interpret these remarks as legitimate compromise
on a bill which comprised a single subject. Indeed, there is a difference between
impermissible logrolling and the normal compromise which is inherent in the legislative
process. See Defenders of Wildlife v. Ventura, 632 N.W.2d 707, 713-15 (Minn. Ct. App.
2001). A diverse and complex enactment such as Public Act 96–34 is likely to result from
compromise and negotiation among the members of the General Assembly. The presence of
such legislative compromise does not mean that the Act violates the single subject rule.
Public Act 96–34 is a constitutionally legitimate enactment genuinely encompassing one
subject. Accordingly, we reverse the judgment of the appellate court holding Public Act
96–34 unconstitutional.
¶ 49 B. Public Act 96–37
¶ 50 In count I of their complaint, plaintiffs also contend that Public Act 96–37, entitled “An
Act concerning government,” violates the single subject rule. Pub. Act 96–37 (eff. July 13,
2009). The official short title of the Act is the “FY2010 Budget Implementation (Capital)
Act,” and its stated purpose is “to make changes in state programs that are necessary to
implement the Governor’s Fiscal Year 2010 budget recommendations concerning capital.”
Id. Among other things, Public Act 96–37 authorizes grants and expenditures to not-for-
profit hospitals, health centers, libraries, parks, and colleges; makes changes to the lottery
provisions in Public Act 96–34, including those pertaining to the private manager of the
lottery; makes changes to the central communications system for video gaming and adds a
severability provision to the Video Gaming Act; adds felony offenses for violations of the
Video Gaming Act; clarifies that increased taxes created under Public Act 96–34 will be
deposited into the Capital Projects Fund while existing taxes will continue to be deposited
into the General Revenue Fund; requires financial disclosures in car rental contracts; certifies
a pilot river edge redevelopment zone in Elgin; amends provisions of the General Obligations
Bond Act; implements an urban weatherization program; provides for pension benefits to the
Illinois Gaming Board; and adds Illinois Gaming Board peace officers.
¶ 51 During the Senate debate for House Bill 2424, Senator Trotter described the bill as
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follows:
“As amended, House Bill 2424 creates various Acts and amends other Acts in order
to implement the capital budget. Specifically, it adds language to implement funding
for safety net hospitals, downstate hospitals, community health facilities, public
libraries, parks, private colleges, school construction. It also amends the Video
Gaming Act to provide further safeguards against the potential abuse of the Act. It
amends the Illinois Lottery Law to address the transition to the selection of a private
manager, the manager’s use of the current department’s employee services. It
requires private managers to hire Lottery employees. And, again, there’s many issues
and–many Acts that are amended.” 96th Ill. Gen. Assem., Senate Proceedings, May
31, 2009, at 169-70 (statements of Senator Trotter).
¶ 52 Plaintiffs contend that Public Act 96–37 “creates entirely new acts, launches wholly new
programs, and initiates laws that have nothing to do with implementation of the State
budget.” However, there is no authority to support the proposition that a budget
implementation bill may only makes changes to existing programs and may not create new
programs. After much consideration, we find that all of the provisions in Public Act 96–37
bear a natural and logical connection to the single subject of implementation of the state’s
capital budget.
¶ 53 In support of their single subject claim, plaintiffs point to only one specific provision
which they argue is not relevant to the implementation of the state budget. That provision
allows car rental companies to include a separately stated mandatory surcharge in car rental
agreements to recover increased costs for vehicle licenses. Pub. Act 96–37 (eff. July 13,
2009) (amending 625 ILCS 5/6–305.3 (West 2008)). Contrary to plaintiffs’ argument, we
find the car rental fee provision to be directly related to the increased vehicle registration fees
imposed by Public Act 96–34, and thus related to the legislative purpose of implementing
the state’s capital budget. “In enacting a bill, the legislature may provide the means necessary
to accomplish the legislative purpose.” Cutinello v. Whitley, 161 Ill. 2d 409, 424 (1994).
Moreover, as with Public Act 96–34, there is no evidence in the legislative debates of
obstruction of an informed discussion of the provisions in the bill. Accordingly, we find no
single subject violation in Public Act 96–37.
¶ 54 C. Public Act 96–38
¶ 55 Public Act 96–38, entitled “An Act concerning government,” changes various provisions
in Public Act 96–34, including the effective date of some of the tax increases. Public Act
96–38 also amends and adds several provisions to the Video Gaming Act, enacted as part of
Public Act 96–34. Specifically, Public Act 96–38 modifies residency requirements for
licenses under the Video Gaming Act; sets forth licensing requirements for operators of
video gaming terminals and adds criminal penalties; and sets forth various other rules and
restrictions concerning the Video Gaming Act. During the debate in the House,
Representatives referred to the bill as a “clean-up Bill for the revenue portion” of the capital
program, in order to “make[ ] those revenues and the streams that were placed in [Public Act
96–34] work better for the Department of Revenue and the retailers who will have to
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implement them *** and the Secretary of State.” 96th Ill. Gen. Assem., House Proceedings,
June 30, 2009, at 39-40 (statements of Representatives Eddy and Mautino). During the
debate in the Senate, Senator Sullivan described the bill as follows:
“Senate Bill 349 amends the Video Gaming Act to provide further safeguards against
potential abuses of the Act. It also amends the Liquor Control Act to increase the tax
rate for alcoholic cider beverages. These are recommendations of the Department of
Revenue with regard to the capital bill that recently passed. *** I will say that this
actually tightens up and further restricts and puts additional safeguards into the
previous passed legislation.” 96th Ill. Gen. Assem., Senate Proceedings, June 30,
2009, at 44-45 (statements of Senator Sullivan).
¶ 56 Plaintiffs allege in count I of their complaint that Public Act 96–38 violates the single
subject rule because two of the provisions in the act relate to neither revenue nor capital
projects. According to plaintiffs, the amendment to the Video Gaming Act providing that
licensed terminal operators and licensed establishments must split the profits of video
gaming 50/50 “notwithstanding any agreement to the contrary” only affects the private
parties who stand to benefit from video gaming. Plaintiffs also argue that the provision
changing the residency requirement for video gaming licensing is unrelated to the subject of
revenue or capital projects.
¶ 57 As with Public Act 96–37, we find no violation of the single subject rule in Public Act
96–38. All of the Act’s provisions relate to capital projects. The subject of capital projects
properly encompasses financing for the projects authorized by the legislation. Having created
the Video Gaming Act in Public Act 96–34, it was permissible for the legislature to enact a
separate bill relating to aspects of video gaming which remained unaddressed by the previous
bill. Accordingly, we affirm the judgment of the circuit court with respect to count I of
plaintiffs’ complaint.
¶ 58 D. Contingency Provisions
¶ 59 Plaintiffs allege in count V of their complaint that the contingency provisions in Public
Acts 96–34, 96–35, 96–37, and 96–38 violate the single subject clause. Section 9999 of
Public Act 96–34 states that “this Act does not take effect at all unless House Bill 312 of the
96th General Assembly [Public Act 96–35], as amended, becomes law.” Public Act 96–35,
the enactment dealing with appropriations, states that it “does not take effect at all unless
House Bill 255 of the 96th General Assembly [Public Act 96–34], as amended, becomes
law.” Both Public Act 96–37 and Public Act 96–38 include provisions stating that various
parts of those acts will take effect “[i]f and only if House Bill 255 of the 96th General
Assembly [Public Act 96–34] becomes law.” Plaintiffs allege that the contingency provisions
in all four bills essentially transform them into “one bill,” thereby violating the single subject
rule and rendering the acts unconstitutional.
¶ 60 We find no constitutional infirmity in any of the contingency clauses challenged by
plaintiffs. In Illinois, the General Assembly may lawfully enact a statute, the operation of
which is dependent upon a contingent event. City of Chicago v. Central National Bank in
Chicago, 5 Ill. 2d 164, 172 (1955); Zisook v. Maryland-Drexel Neighborhood
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Redevelopment Corp., 3 Ill. 2d 570, 581 (1954); People ex rel. Thomson v. Barnett, 344 Ill.
62, 72 (1931); Home Insurance Co. v. Swigert, 104 Ill. 653 (1882). Whether the enactment
of a statute may be contingent on the enactment of another statute is an issue of first
impression in Illinois. However, nothing in our constitution prohibits making a piece of
legislation contingent on a separate legislative enactment.
¶ 61 Courts in other jurisdictions have upheld the legislature’s authority to declare that an act
becomes effective only upon the enactment of a separate act. See In re R.W., 588 So. 2d 499,
500 (Ala. Civ. App. 1991); People v. Sterling Refining Co., 261 P. 1080, 1085 (Cal. Dist. Ct.
App. 1927); In re Advisory Opinion to the Governor, 239 So. 2d 1, 9 (Fla. 1970); Shehane
v. Wimbish, 131 S.E. 104, 105 (Ga. Ct. App. 1925); State v. Reado, 295 So. 2d 440, 444 (La.
1974); State ex rel. De Woody v. Bixler, 25 N.E.2d 341, 344 (Ohio 1940); Marr v. Fisher,
187 P.2d 966, 969-70 (Or. 1947); Johnson v. State, 60 P.2d 681, 682 (Wash. 1936). The only
restriction which has been imposed on the practice of tying together two statutes in this
manner is that there be a reasonable relationship between the statutes:
“Appropriations may constitutionally be made contingent upon matters or events
reasonably related to the subject of the appropriation, but may not be made to depend
upon entirely unrelated events. For example, an appropriation to a university might
be contingent upon the registration of a minimum number of students who could
benefit from the appropriation or contingent upon the state revenues reaching a
certain level. There is no constitutional impediment to an appropriation being made
contingent upon another bill, reasonably related to the appropriation and where there
is a direct and relative interdependence between them, becoming law.” In re Advisory
Opinion to the Governor, 239 So. 2d at 9.
¶ 62 The public acts in the instant case clearly are reasonably related to one another in that
they are associated with raising funds for capital projects, establishing capital projects, and
appropriating funds to those projects. In light of that relationship, we hold that the
contingency provisions in the acts do not violate the single subject rule. Each bill was
separately enacted, in accordance with the Illinois Constitution; therefore, we cannot say that
the contingency provisions transformed the acts into a single act for purposes of the single
subject rule. Nor do the contingency provisions represent improper logrolling, as plaintiffs
contend. The practicalities of implementing a large and complex capital projects program,
while complying with constitutional guidelines, necessitated that the legislature separate the
various parts of the program into separate bills. At the same time, it makes little sense to
raise taxes to fund capital programs without appropriating the money toward those programs,
and vice versa. The Supreme Court of Florida recognized this interrelationship when it
upheld three tax statutes which were made contingent upon the enactment of each of the
other acts. The court explained:
“[The Florida Revenue Act of 1949] is a law which embraces but one subject and
matters properly connected therewith. The fact that it is an act which was passed as
part and parcel of a comprehensive tax program devised by the legislature in the
exercise of its law-making power, makes it none the less a single law within the
purview of [the single subject rule]***. *** A legislative program of such magnitude
may necessarily involve several subjects before the ultimate end effect can be
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accomplished. It was essential, therefore, in enacting its program that the legislature
provide a separate law for each subject with which it dealt. It had no alternative and
it cannot be said that it violated [the single subject rule] for actually it complied
meticulously with the requirements of that constitutional provision.” Gaulden v. Kirk,
47 So. 2d 567, 575 (Fla. 1950).
¶ 63 We agree with this reasoning and hold that the contingency provisions in the acts do not
violate the single subject rule. We therefore affirm the judgment of the circuit court with
respect to count V of plaintiffs’ complaint.
¶ 64 We note that the appellate court below held that the contingency provisions in Public
Acts 96–35, 96–37, and 96–38 render the acts invalid. That holding was not based on the
constitutionality of those acts, however, but on the court’s conclusion that Public Act 96–34
violated the single subject rule and was, therefore, void in its entirety. Under the appellate
court’s reasoning, the remaining public acts, which were contingent on the enactment of
Public Act 96–34, could not stand. Because we find no violation of the single subject rule
in any of the challenged acts, the other acts are not invalid on this basis.
¶ 65 II. Presentment Clause, Effective-Date-of-Laws Clause,
Veto Procedures, Separation of Powers
¶ 66 In count VI of their complaint, plaintiffs further allege that the provisions tying together
Public Acts 96–34 and 96–35 violate the presentment clause (Ill. Const. 1970, art. IV,
§ 9(a)), the effective-date-of-laws clause (Ill. Const. 1970, art. IV, § 10), veto procedures (Ill.
Const. 1970, art. IV, §§ 9(b), (d), (e)), and the separation of powers doctrine (Ill. Const.
1970, art. II, § 1). Plaintiffs’ contentions are unavailing.
¶ 67 The presentment clause states: “Every bill passed by the General Assembly shall be
presented to the Governor within 30 calendar days after its passage. The foregoing
requirement shall be judicially enforceable. If the Governor approves the bill, he shall sign
it and it shall become law.” Ill. Const. 1970, art. IV, § 9(a). Plaintiffs argue that the
presentment clause contemplates a single bill rather than a group of bills, and that a bill must
become effective upon being signed by the Governor. Plaintiffs’ argument is unpersuasive.
The presentment clause does not mandate that, once the bill is signed by the Governor, the
bill must take effect immediately. It simply states that the bill “shall become law.” The
General Assembly has the authority to direct the date upon which an act shall take effect.
People ex rel. Thomson v. Barnett, 344 Ill. 62, 72 (1931). The bills in the instant case do not
violate the presentment clause.
¶ 68 Plaintiffs’ argument regarding the effective-date-of-laws clause also fails. The effective-
date-of-laws clause states:
“The General Assembly shall provide by law for a uniform effective date for laws
passed prior to June 1 of a calendar year. The General Assembly may provide for a
different effective date in any law passed prior to June 1. A bill passed after May 31
shall not become effective prior to June 1 of the next calendar year unless the General
Assembly by the vote of three-fifths of the members elected to each house provides
for an earlier effective date.” Ill. Const. 1970, art. IV, § 10.
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¶ 69 Plaintiffs contend that, when the constitution states that a bill passed under certain
circumstances shall take effect on a certain date, the legislature cannot change the date absent
passage, presentment, and enactment of a subsequent bill.
¶ 70 We find no violation of the effective-date-of-laws clause. Both Public Act 96–34 and
96–35 were passed by more than three-fifths of the members elected to each house and thus
fit within the exception in the effective-date-of-laws clause. Both bills took effect
immediately upon becoming law on July 13, 2009.
¶ 71 Finally, plaintiffs argue that the contingency provisions negate the Governor’s ability to
veto laws, in violation of the veto procedures established in the constitution (Ill. Const. 1970,
art. IV, §§ 9(b), (d), (e)), and the separation of powers doctrine (Ill. Const. 1970, art. II, § 1).
They argue that tying the legislation together in this manner represents an unconstitutional
effort by the legislative branch to control or deprive the executive branch of its veto powers.
¶ 72 We reiterate that each of the bills at issue was enacted separately and that the tying
provisions did not transform the bills into a single bill. Therefore, the Governor was not
prohibited from using his veto powers in accordance with the Constitution. We also
recognize the practical need for the legislature to separate the various parts of the capital
program into separate bills while also tying the revenue sources together with their
corresponding appropriations. See also In re Advisory Opinion to the Governor, 239 So. 2d
1, 9-10 (Fla. 1970) (finding that the legislature did not interfere with the governor’s veto
power where it made an appropriation bill contingent upon another reasonably related bill).
Accordingly, we hold that the tying provisions in Public Acts 96–34 and 96–35 did not
violate the separation of powers doctrine or run afoul of constitutional veto procedures. We
therefore affirm the judgment of the circuit court with respect to count VI of plaintiffs’
complaint.
¶ 73 III. Public Funds Clause
¶ 74 In count II of their complaint, plaintiffs allege that the video gaming and lottery private
manager provisions in Public Acts 96–34, 96–37, and 96–38 violate article VIII, section 1(a),
of the Illinois Constitution of 1970 (the public funds clause): “Public funds, property or
credit shall be used only for public purposes.” Ill. Const. 1970, art. VIII, § 1(a).
¶ 75 Article 5 of Public Act 96–34 creates the Video Gaming Act, which allows certain
licensed establishments to conduct video gaming and imposes a 30% tax on all net income
from video gaming terminals. Pub. Act 96–34 (eff. July 13, 2009); see also Pub. Acts 96–37,
96–38 (eff. July 13, 2009) (amending the Video Gaming Act). The amendments to the
Illinois Lottery Law in article 900, section 900, of Public Act 96–34, and article 60, section
60–10, of Public Act 96–37 provide, in part, that the Department of Revenue “shall conduct
the lottery with the assistance of a private manager under a management agreement at all
times in a manner consistent with [federal law].” Pub. Acts 96–34, 96–37 (eff. July 13, 2009)
(amending 20 ILCS 1605/2 (West 2008)). According to plaintiffs, these provisions violate
federal laws criminalizing the promotion and advertisement of lotteries in interstate
commerce. 18 U.S.C. §§ 1301 through 1304, 1953(a) (2000). Plaintiffs then argue, with no
citation to authority, that “because the programs constitute illegal gambling under federal
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law, expending State funds to establish them violates the Constitution’s command that public
funds be used only for public purposes.” We disagree.
¶ 76 Plaintiffs’ premise that the programs are illegal is questionable. First, video gaming does
not appear to fit within the definition of a “lottery” under federal law, which means the Video
Gaming Act is not subject to the federal criminal gambling laws relied on by plaintiffs. See
18 U.S.C. §§ 1307(d), 1953(e). Secondly, from our review of the legislation, it appears that
the amendments to the Illinois Lottery Law in Public Acts 96–34 and 96–37 were drafted
with the goal of conforming with the federal guidelines for lotteries conducted by a state
acting under the authority of state law. See 18 U.S.C. §§ 1307(a)(1), (b)(1), 1953(b)(4); see
also Scope of Exemption Under Federal Lottery Statutes for Lotteries Conducted by a State
Acting Under the Authority of State Law, Op. O.L.C. (Oct. 16, 2008),
http://www.justice.gov/olc/2008/state-conducted-lotteries101608.pdf.
¶ 77 In any event, even if plaintiffs are correct that the video gaming and lottery private
manager provisions violate federal criminal law, it does not follow that these provisions
violate the public funds clause in the constitution. Whether an enactment complies with
federal law is not the test for deciding whether the enactment runs afoul of the public funds
clause.
¶ 78 The principles regarding a public purpose under article VIII, section 1(a), are well settled.
To establish that a statute is unconstitutional, “ ‘facts must be alleged indicating that
governmental action has been taken which directly benefits a private interest without a
corresponding public benefit.’ ” Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62,
85 (2008) (quoting Paschen v. Village of Winnetka, 73 Ill. App. 3d 1023, 1028-29 (1979)).
“This court has long recognized that what is for the public good and what are public purposes
are questions which the legislature must in the first instance decide.” In re Marriage of
Lappe, 176 Ill. 2d 414, 429-30 (1997) (citing People ex rel. City of Salem v. McMackin, 53
Ill. 2d 347, 355 (1972), and Cremer v. Peoria Housing Authority, 399 Ill. 579, 588 (1948)).
“In making this determination, the legislature is vested with a broad discretion, and the
judgment of the legislature is to be accepted in the absence of a clear showing that the
purported Public purpose is but an evasion and that the purpose is, in fact, private.” Id. at 430
(citing Salem, 53 Ill. 2d at 355, People ex rel. McDavid v. Barrett, 370 Ill. 478, 482 (1939),
and Hagler v. Small, 307 Ill. 460, 474 (1923)).
¶ 79 “This court has recognized that ‘[t]he execution of a public purpose which involves the
expenditure of money is usually attended with private benefits.’ ” Id. at 436-37 (quoting
Hagler, 307 Ill. at 473). “If the principal purpose of the enactment is public in nature, it is
irrelevant that there will be an incidental benefit to private interests.” Id. at 437 (citing Salem,
53 Ill. 2d at 355, and People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 14 Ill.
2d 230, 236 (1958)).
¶ 80 Plaintiffs do not allege that either the video gaming or lottery manager provisions benefit
a private interest without a corresponding public benefit, or that the legislature’s stated
purpose for the enactments is an evasion and that the purpose is, in fact, private. The purpose
of the Video Gaming Act is to increase revenue to the state, undoubtedly a public purpose.
With regard to the lottery provisions, although the private manager of the lottery may receive
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up to 5% of lottery profits as compensation (Pub. Act 96–37 (eff. July 13, 2009) (amending
20 ILCS 1605/9.1 (West 2008)), this does not negate the public purpose of the provisions.
Where an enactment authorizes the expenditure of public funds pursuant to a public purpose,
an “incidental benefit to private interests” does not cause the enactment to be
unconstitutional. See Lappe, 176 Ill. 2d at 437. We find no violation of the public funds
clause. Accordingly, we affirm the judgment of the circuit court with respect to count II of
plaintiffs’ complaint.
¶ 81 IV. Uniformity Clause
¶ 82 Article IX, section 2, of the Illinois Constitution (the uniformity clause), provides:
“In any law classifying the subjects or objects of non-property taxes or fees, the
classes shall be reasonable and the subjects and objects within each class shall be
taxed uniformly.” Ill. Const. 1970, art. IX, § 2.
The uniformity clause is a “specific limitation on the General Assembly in the exercise of
its taxing power.” Searle Pharmaceuticals, Inc. v. Department of Revenue, 117 Ill. 2d 454,
466-67 (1987). The clause requires that a tax classification be based on a real and substantial
difference between the persons taxed and those not taxed, and bear some reasonable
relationship to the object of the legislation or to public policy. Arangold Corp. v. Zehnder,
204 Ill. 2d 142, 153 (2003).
¶ 83 A taxpayer raising a uniformity challenge “is not required to prove that every conceivable
explanation for the tax is unreasonable. Rather, the taxing body must ‘produce a justification
for its classifications.’ ” Id. at 156 (quoting Geja’s Cafe v. Metropolitan Pier & Exposition
Authority, 153 Ill. 2d 239, 248 (1992)). This does not mean, however, that the taxing body
has an evidentiary burden or is required to produce facts to justify the classification.
Arangold, 204 Ill. 2d at 156. The court’s inquiry regarding the proffered justification is
narrow, and “[i]f a set of facts ‘can be reasonably conceived that would sustain it, the
classification must be upheld.’ ” Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62,
73 (2008) (quoting Geja’s Cafe, 153 Ill. 2d at 248). Once the taxing body has offered a
justification for the classification, the plaintiff then has the burden to persuade the court that
the defendant’s explanation is insufficient as a matter of law or unsupported by the facts.
Arangold, 204 Ill. 2d at 156; Sun Life Assurance Co. of Canada v. Manna, 227 Ill. 2d 128,
136-37 (2007).
¶ 84 Article 900, section 945, of Public Act 96–34 amends section 8–1 of the Liquor Control
Act of 1934 (235 ILCS 5/8–1 (West 2008)) to impose a tax increase on distributors of beer,
wine and spirits. In addition to previously existing taxes, the provision adds a new tax of 4.6
cents per gallon on distributors of beer, 66 cents per gallon on distributors of wine, and $4.05
per gallon on distributors of spirits. In count III of their complaint, plaintiffs contend that
there is “no expressed or sustainable rationale whatsoever for the huge difference in the
gallonage taxes as between the categories of beer, wine and spirits” and, therefore, the tax
increases in article 900, section 945, violate the uniformity clause. We disagree.
¶ 85 Plaintiffs acknowledge that the percentage of alcohol is higher by volume in wine than
in beer, and higher in spirits than in both beer and wine. It is well established that higher
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taxes may be constitutionally imposed on alcoholic beverages that have a higher alcohol
content, based on the rationale that beverages with a higher alcohol content contribute to
various societal ills and higher taxes on those beverages promotes temperance. See Timm v.
Harrison, 109 Ill. 593, 600-01 (1884) (holding, under the constitution of 1870, that “[t]he
line of division into classes here made, based upon the sale of malt liquors as distinguished
from more intoxicating drinks, if viewed as for taxation, is a quite natural and a reasonable
one, and not out of harmony, in our view, with any feature of the constitution in respect of
taxation”); Federated Distributors, Inc. v. Johnson, 125 Ill. 2d 1, 19-20 (1988) (recognizing
the validity of taxing “lower alcohol level products at lower rates”); see also, e.g., Imaginary
Images, Inc. v. Evans, 612 F.3d 736, 746-47 (4th Cir. 2010); Horton v. Cook, 538 S.W.2d
221, 222 (Tex. Civ. App. 1976).
¶ 86 Relying on Wexler v. Wirtz Corp., 211 Ill. 2d 18 (2004), plaintiffs maintain that it cannot
be assumed that the taxes in article 900, section 945, which are imposed on liquor
distributors, are passed on to either retailers or consumers. Thus, according to plaintiffs,
despite the long-standing principle that higher taxes may be imposed on beverages with
higher alcohol content, “in the wake of Wexler,” temperance cannot be a sufficient
justification for the tax.
¶ 87 In Wexler, this court held that an individual consumer lacked standing to challenge a
liquor tax imposed on a distributor of alcoholic beverages. In so holding we noted that, even
though evidence showed that the distributor had raised its prices to offset the tax increase,
and that cost may have been passed on to consumers, that fact did not change the “legal
status of the parties.” Id. at 27. Even if consumers paid a higher price, they could not legally
be considered the payers of the challenged tax because the distributor “was the only entity
under a legal obligation to remit the tax to the state, and it was the only entity that actually
paid the tax.” Id. Contrary to plaintiffs’ assertions, nothing in Wexler precludes the General
Assembly from assuming, for purposes of promoting the goal of temperance, that increases
in wholesale liquor taxes normally will result in increased prices for retail consumers.
¶ 88 Plaintiffs also contend that the new tax rates in article 900, section 945, are
unconstitutional because they do not follow proportionally with the alcohol content in the
beverages. That is, according to plaintiffs, if the alcohol content in wine is 2 to 3 times
greater by volume than in beer, then the tax must be only 2 to 3 times greater, and if the
alcohol content in spirits is 8 times greater than in beer, then that tax must be only 8 times
greater. But the uniformity clause does not impose such a strict proportionality requirement.
“ ‘Rather, the uniformity clause was designed to enforce minimum standards of
reasonableness and fairness as between groups of taxpayers.’ ” Arangold Corp., 204 Ill. 2d
at 153 (quoting Geja’s Cafe, 153 Ill. 2d at 252). The tax classifications in article 900, section
945, meet that standard.
¶ 89 Temperance is a legitimate public goal and the classifications established in article 900,
section 945, are in furtherance of that goal. Because the legislature’s judgment on this subject
is not a matter that may be factually refuted (Empress Casino, 231 Ill. 2d at 75), plaintiffs’
uniformity clause claim was properly rejected by the circuit court as a matter of law.
DeWoskin v. Loew’s Chicago Cinema, Inc., 306 Ill. App. 3d 504, 523 (1999). Accordingly,
we affirm the judgment of the circuit court with respect to count III of plaintiffs’ complaint.
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¶ 90 V. Substantive Law in an Appropriation Bill
¶ 91 Article IV, section 8(d), of the 1970 Illinois Constitution states that “Appropriation bills
shall be limited to the subject of appropriations” (Ill. Const. 1970, art. IV, § 8(d)). The reason
for this limitation has been explained:
“History tells us that the general appropriation bill presents a special temptation
for the attachment of riders. It is a necessary and often popular bill which is certain
of passage. If a rider can be attached to it, the rider can be adopted on the merits of
the general appropriation bill without having to depend on its own merits for
adoption.” Millard H. Ruud, No Law Shall Embrace More Than One Subject, 42
Minn. L. Rev. 389, 413 (1958).
Primarily because of this concern, “an appropriation bill may not contain substantive law.”
Board of Trustees of Community College District No. 508 v. Burris, 118 Ill. 2d 465, 477-78
(1987); see also People ex rel. Kirk v. Lindberg, 59 Ill. 2d 38, 42-43 (1974) (noting that the
inclusion of provisions other than appropriations in an appropriation bill may effectively
nullify the governor’s veto power).
¶ 92 However, although an appropriation bill is limited to the subject of appropriations, this
limitation is not applied in a “strict, literal sense.” 42 Minn. L. Rev. at 423. An appropriation
bill may include conditions that “restrict and qualify” an appropriation and that must be
fulfilled before the authorized funds are spent. Benjamin v. Devon Bank, 68 Ill. 2d 142, 148
(1977). “[T]he appropriations act is not limited to a bare statement of the amounts
appropriated and the purposes or objects of the appropriation. Provisions that are an
incidental and necessary regulation of the expenditure of the money appropriated may be
included.” 42 Minn. L. Rev. at 423.
¶ 93 In count IV of their complaint, plaintiffs maintain that Public Act 96–35, which contains
appropriations for capital projects, also contains several provisions that do not merely restrict
or qualify an appropriation but, instead, create substantive law in violation of article IV,
section 8(d). Before addressing these provisions, we clarify the nature of plaintiffs’ argument.
¶ 94 Plaintiffs’ challenge to Public Act 96–35 is directed to the Act in its entirety. They assert
that the “inclusion of any substantive law authority in [an appropriation] bill invalidates the
entire bill.” Thus, according to plaintiffs, if any single provision in Public Act 96–35 contains
substantive law, then the entire act is invalid and further, because the effectiveness of Public
Act 96–34 is contingent upon Public Act 96–35 becoming law, Public Act 96–34 falls as
well. The premise of plaintiffs’ argument is not correct.
¶ 95 A claim that substantive law is contained in an appropriation bill may be contrasted with
a single subject challenge. It is generally held that when an act contains two or more subjects
in violation of the single subject rule, the reviewing court cannot choose which subject is the
“right” one and eliminate the other. Such a determination would “inject[ ] the courts more
deeply than they should be into the legislative process.” Litchfield Elementary School
District No. 79 v. Babbitt, 608 P.2d 792, 804 (Ariz. Ct. App. 1980); Power, Inc. v. Huntley,
235 P.2d 173, 178 (Wash. 1951) (when an act embraces two subjects it is impossible for a
court to choose between the two). Largely for this reason, a single subject challenge is
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directed toward the act as a whole. Because there is no “right” subject that the court can look
to, “ ‘[t]here is no one provision or feature of the act that is challenged as unconstitutional,
such that the defect could be remedied by a subsequent amendment which simply deleted or
altered that provision or feature.’ ” People v. Olender, 222 Ill. 2d 123, 145-46 (2005)
(quoting Johnson v. Edgar, 176 Ill. 2d 499, 511-12 (1997)); Litchfield, 608 P.2d at 804
(“Since the enactment in question is infected by reason of the combination of its various
elements rather than by any invalidity of one component, the otherwise salutary principle of
severance and partial savings of valid portions does not apply”); Huntley, 235 P.2d at 178
(when an act embraces “ ‘two distinct objects, when the constitution says it shall embrace
but one, the whole act must be treated as void’ ” (quoting 1 Walter Carrington, Cooley’s
Constitutional Limitations 308 (8th ed. 1927))).
¶ 96 The same is not true with respect to a claim that an appropriation bill contains a
substantive law provision. The “right” subject in an appropriation bill is appropriations, as
the constitution itself states. Thus, in an appropriation bill, a provision that contains
substantive law is “ ‘one provision or feature’ ” (Olender, 222 Ill. 2d at 146 (quoting
Johnson, 176 Ill. 2d at 512)) that is constitutionally impermissible, and the appropriate
remedy is to strike that provision from the act. See People ex rel. Kirk v. Lindberg, 59 Ill. 2d
38, 42 (1974); Devon Bank, 68 Ill. 2d 142; see also, e.g., Department of Education v. Lewis,
416 So. 2d 455, 463 (Fla. 1982). Only if the substantive provision cannot be severed will the
act be struck in its entirety.
¶ 97 With this understanding, we turn to plaintiffs’ claims. Article 140, section 99, of Public
Act 96–35 states that the Act does not become effective unless Public Act 96–34, as
amended, becomes law. Plaintiffs contend this contingency provision effectively incorporates
all of Public Act 96–34, with its numerous substantive law provisions, into Public Act 96–35
and, therefore, that these substantive provisions are invalid. We disagree.
¶ 98 Although the effectiveness of Public Act 96–35 is contingent on Public Act 96–34
becoming law, this does not mean that the provisions of Public Act 96–34 are part of Public
Act 96–35 within the meaning of the constitutional prohibition against including substantive
law. Indeed, as we discussed previously (see section I(D), supra), it is permissible to make
an appropriation bill contingent upon the passage of other, reasonably related legislation. In
re Advisory Opinion to the Governor, 239 So. 2d at 9; Colton v. Branstad, 372 N.W.2d 184,
189 (Iowa 1985) (“it is well established that appropriations may be made contingent upon
matters or events reasonably related to the subject of the appropriation”). Accordingly, we
reject plaintiffs’ contention that Public Act 96–34 is effectively and improperly incorporated
into Public Act 96–35.
¶ 99 Plaintiffs also identify several other provisions that are, in fact, contained within Public
Act 96–35 and that, in plaintiffs’ view, constitute substantive law. Plaintiffs first point to
article 100, section 30, of Public Act 96–35. This provision reappropriates funds from the
Build Illinois Bond Fund to the Illinois Environmental Protection Agency for grants for
wastewater-compliance programs, and states that “[t]hese grants are limited to projects for
which the local government provides at least 30% of the project cost[, t]here is an approved
compliance plan, and there is an enforceable compliance schedule prior to grant award.”
Plaintiffs contend that this provision constitutes substantive law because it adds restrictions
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for wastewater-compliance grants not found in the Illinois Environmental Protection Act
itself (415 ILCS 5/4(t) (West 2008)).
¶ 100 Plaintiffs also point to article 61, section 10, and article 5, section 15, of Public Act
96–35. Article 61, section 10, states that, with respect to appropriations to the Illinois
Emergency Management Agency for safety and security improvements at higher education
facilities “[n]o contract shall be entered into or obligation incurred for any expenditures from
appropriations in Section 5 of this Article until after the purposes and amounts have been
approved in writing by the Governor.” Similarly, article 5, section 15, which reappropriates
funds to the Office of the Architect of the Capitol, states that “[n]o contract shall be entered
into or obligation incurred for any expenditures from appropriations in Sections 5 and 10 of
this Article until after the purposes and amounts have been approved in writing by the
Governor.” Plaintiffs maintain that both these provisions alter substantive law by requiring
the Governor’s approval for the expenditures, a requirement not found in the underlying
enabling statutes for the Illinois Emergency Management Agency or the Office of the
Architect of the Capitol.
¶ 101 Finally, plaintiffs’ point to article 50, section 25. This provision states that the “sum of
$310,000,000, or so much thereof as may be necessary, is appropriated from the
Transportation Bond Series A Fund to the Department of Transportation for [various
projects] as approximated below.” The provision then lists a dollar amount for 10 geographic
districts and a dollar amount for “engineering.” Plaintiffs contend that the phrase “as
approximated below” impermissibly delegates to the Director of the Department of
Transportation the job of appropriating money and, thus, constitutes invalid substantive law.
¶ 102 Defendants, in response, initially contend that plaintiffs’ claims regarding the foregoing
provisions are moot. We agree. Plaintiffs’ complaint is brought pursuant to section 11–303
of the Code of Civil Procedure (735 ILCS 5/11–303 (West 2008)), which permits an “action
to restrain and enjoin the disbursement of public funds by any officer or officers of the State
government.” See 735 ILCS 5/11–301 (West 2008). As defendants point out, the 2009 fiscal
year is over, and the appropriation authority created by Public Act 96–35 has lapsed. See
West Side Organization Health Services Corp. v. Thompson, 79 Ill. 2d 503, 506 (1980). This
court cannot enjoin the legislature from appropriating funds pursuant to the provisions cited
by plaintiffs because those provisions are no longer in effect. Because this court cannot grant
effective relief, plaintiffs’ claims regarding the challenged provisions are moot. Felzak v.
Hruby, 226 Ill. 2d 382, 392 (2007).
¶ 103 Plaintiffs, however, ask us to invoke the public interest exception to the mootness
doctrine. The criteria for invoking the public interest exception are: (1) the public nature of
the question, (2) the desirability of an authoritative determination for the purpose of guiding
public officers, and (3) the likelihood that the question will generally recur. In re A Minor,
127 Ill. 2d 247, 257 (1989). We note that the provisions challenged by plaintiffs continue to
be employed by the General Assembly in current budget legislation. See 97th Ill. Gen.
Assem., Senate Bill 2414, 2011 Sess., article 1, section 20 (Governor’s approval for
Architect of the Capitol contracts); article 10, section 20 (“approximated below” language);
article 13, section 10 (Governor’s approval for Emergency Management Agency contracts);
article 22, section 35 (restrictions on wastewater-compliance grants). Given this fact and the
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clear public nature of the issues presented, as well as the desirability of a resolution of the
questions presented, we conclude that the criteria of the public interest exception have been
met. See, e.g., Colton, 372 N.W.2d at 187.
¶ 104 Turning to the merits, in support of their claim that the restrictions on grants for
wastewater-compliance found in article 100, section 30, amount to unconstitutional
substantive law, plaintiffs rely primarily on this court’s decision in Benjamin v. Devon Bank,
68 Ill. 2d 142 (1977). In that case, a statute authorized the Director of the Department of
Labor, in his discretion and with the approval of the Governor, to open branch offices outside
Springfield. Id. at 148. After the Director entered into a lease for an unemployment insurance
office located in Chicago, the General Assembly included a provision in an appropriation bill
which stated that none of the Department’s appropriated funds could be used to open or staff
an unemployment insurance office “located within 500 feet of a school in any city with a
population over 1,000,000.” (Internal quotation marks omitted.) Id. at 143. Finding this
provision to be unconstitutional substantive law, this court “agree[d] that the General
Assembly may restrict and qualify the use to which funds appropriated may be put” but held
that, in this case, the contested provision impermissibly “placed an additional limitation on
the location of a branch office, and this cannot be done in an appropriation bill.” Id. at 148.
¶ 105 The statutory provision at issue in Devon Bank differs significantly from article 100,
section 30. The provision in Devon Bank was targeted to a single lease. It was an attempt to
overturn an action taken by the executive branch, which was authorized by statute, through
the use of a legislative rider. This is the type of unreasonable legislative maneuver the
constitutional prohibition on including substantive law is intended to prevent. In contrast, the
restrictions in article 100, section 30, are not targeted to any single wastewater project but
are applicable to all grants for which money has been appropriated under that provision.
Further, there is no indication that the legislature, by including article 100, section 30, was
attempting to overturn previous decisions made by the executive branch that were authorized
by general laws. We conclude that article 100, section 30, contains reasonable restrictions
on an appropriation that do not constitute substantive law.
¶ 106 We similarly find no constitutional problem with article 61, section 10, or article 5,
section 15, the provisions which require the Governor’s approval before expenditures from
the appropriations may be made. Case law recognizes a distinction between appropriations
and expenditures, and the prevailing view is that provisions which authorize the executive
branch to control the expenditure of the amounts appropriated by the legislature may be
included in an appropriation bill. See State ex rel. Holmes v. State Board of Finance, 367
P.2d 925, 929-30 (N.M. 1961) (and cases cited therein). We agree and hold that neither
article 61, section 10, nor article 5, section 15, contains impermissible substantive law.
¶ 107 Finally, we reject plaintiffs’ contention that the phrase “as approximated below” found
in article 50, section 25, improperly delegates to the Director of the Department of
Transportation the job of appropriating money. In support of their contention, plaintiffs cite
this court’s decision in County of Cook v. Ogilvie, 50 Ill. 2d 379 (1972). In that case, this
court held unconstitutional a statute which allowed the Department of Public Aid, with the
consent of the Governor, to “reapportion the amounts appropriated in this section among the
several subdivisions of distributive expenses herein designated as the need therefor arises.”
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Id. at 384. No such provision allowing reapportionment is found in article 50, section 25.
¶ 108 The “as approximated below” language simply acknowledges the fact that the completion
of some of the projects authorized by article 50, section 25, may not require all the funds that
have been appropriated. The provision itself makes this clear by stating that the sum of
$310,000,000, “or so much thereof as may be necessary,” is appropriated for the various
projects. We find nothing constitutionally impermissible about the inclusion of the “as
approximated below” language.
¶ 109 Because we find no constitutional infirmity with respect to the provisions challenged by
plaintiffs, we affirm the judgment of the circuit court with respect to count IV of plaintiffs’
complaint.
¶ 110 CONCLUSION
¶ 111 For the foregoing reasons, the judgment of the appellate court is reversed and the
judgment of the circuit court is affirmed.
¶ 112 Appellate court judgment reversed;
¶ 113 circuit court judgment affirmed.
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