Find Legal Information

Filed September 30, 2003

_______________________________________________________________________________________

________________________________________________________________________________________

_____________________________________________________________________________________

JUSTICE O'MALLEY delivered the opinion of the court:

Ceres One Corporation and others (objectors) filed tax objections in the circuit court of DuPage County challenging the 1996 tax levy of the Naperville Township Road District (District). Objectors brought nine objections labeled (A) through (I). The trial court granted objectors' motionfor summary judgment on objection (H), which challenged the portion of the 1996 levy designatedfor the "permanent road fund." The District appeals, and we affirm.

In 1996, the District levied a general tax at a rate of $.01072 on every $100 of assessedvaluation. Part of this general tax was specifically designated for the "permanent road fund" and waspurportedly authorized by a special hard road tax levy that was approved by the District in 1979 andauthorized an annual tax for road improvements. The record shows that a levy for a special hard roadtax indeed was approved by referendum in the District on April 10, 1979, pursuant to the provisionsof the Illinois Highway Code (Code) (Ill. Rev. Stat. 1977, ch. 121, par. 1--101 et seq.).

Objectors argued before the trial court that the 1979 levy was invalid, and so, by extension,was the 1996 road tax. On objectors' motion for summary judgment, the trial court found several ofthe objections meritorious and declared the 1996 road tax invalid. In their appellees' brief, objectorsraise an argument not brought before the trial court, viz., that the 1979 levy expired by force of lawfive years after it was approved, and thus the 1996 tax was ultra vires. In light of the fact that thefive-year limitation was repealed shortly after the 1979 tax levy was approved, we directed the partiesto address the specific question of whether the repeal applied retrospectively to the 1979 levy so asto eliminate the need to renew the levy after five years. In its supplemental brief, the District claimsthat objectors' new argument is waived because it was not raised in the trial court. Nonetheless, wemay affirm the judgment of the trial court on any ground appearing in the record, regardless ofwhether that ground was relied upon by the trial court or whether its reasoning was correct. Hawkesv. Casino Queen, Inc., 336 Ill. App. 3d 994, 1005 (2003). We hold that, because the 1979 hard roadtax levy expired five years after it was passed and the District never renewed it, the 1996 road tax wasultra vires.

At the time the 1979 levy was approved, section 6--601 of the Code (Ill. Rev. Stat. 1977, ch.121, par. 6--601) provided:

"On the petition of 25 legal voters of any road district to the district clerk he shall,when giving notice of the time and place for holding the next annual town meeting or roaddistrict election, also give notice that a vote will be taken at such election or meeting for oragainst an annual tax not to exceed .167% of the value of the taxable property, as equalizedor assessed by the Department of Local Government Affairs, for the purpose of constructingor maintaining gravel, rock, macadam or other hard roads, or for improving, maintaining orrepairing earth roads by draining, grading, oil treating or dragging. Such petition shall statethe location and route of the proposed road or roads, and shall also state the annual rate percent not exceeding .167% of the value, as equalized or assessed by the Department of LocalGovernment Affairs, and the number of years not exceeding 5 for which such tax shall belevied." (Emphasis added.)

Section 6--602 of the Code provided:

"If a majority of all the ballots cast at such election on such proposition are in favorof such special tax, then the township board of auditors or highway board of auditors, as thecase may be, or the highway commissioner in a county not under township organization ofthe road district shall levy an annual tax in accordance with such vote and certify the same tothe county clerk. *** The length of time for which the special tax may continue however, maynot exceed 5 years." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 121, par. 6--602.

Within five years after the 1979 special hard road tax levy was approved, the legislatureadopted Public Acts 81--779 and 81--821, both effective January 1, 1980. Public Act 81--779, whichwas approved on September 16, 1979, deleted the above italicized language from sections 6--601 and6--602, thus removing the five-year limitation. See Ill. Rev. Stat. 1979, ch. 121, pars. 6--601, 6--602. Public Act 81--779 also added section 6--602.1 (Ill. Rev. Stat. 1979, ch. 121, par. 6--602.1), whichstated in relevant part:

"Any Road District voting after April 3, 1979 to levy a special tax for most purposesunder the provisions of this Section shall establish such annual tax on a permanent basis unlesson the Petition of 25 legal voters of any Road District to the District Clerk."

Public Act 81--821, approved three days after Public Act 81-- 779 on September 19, 1979,amended section 6--602 to clarify that, once passed, a special hard road tax levy remains in effectuntil repealed by the road district. See Ill. Rev. Stat. 1979, ch. 121, par. 6--602 ("Such special taxshall remain in effect until repealed by the legal voters of the road district as provided in Section 6--617 of the Code [(Ill. Rev. Stat. 1979, ch. 121, par. 6--617)]"). Public Act 81--821 also addedsection 6--617, which stated in relevant part:

"To repeal the special tax, once levied, 25 legal voters of the road district shall petitionthe district clerk. Such petition shall contain a request for an election. The district clerk shallthen, when giving notice of the time and place for holding the next road district election, alsogive notice that a vote will be taken at such election for or against the repeal of the annual tax***." Ill. Rev. Stat. 1979, ch. 121, par. 6--617.

Some months later, on September 26, 1980, Public Act 81--1509 was approved and made effective. Public Act 81--1509 eliminated section 6--602.1.

It is undisputed that the District never renewed the 1979 levy prior to imposing the 1996 tax.

Applying the retroactivity analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244,128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), and adopted by our supreme court in CommonwealthEdison Co. v. Will County Collector, 196 Ill. 2d 27 (2001), we hold that the elimination of the five-year limitation in Public Acts 81--779 and 81--821 did not apply retrospectively to eliminate the needto renew the 1979 tax levy after five years. Under the Landgraf analysis, the first question is whetherthe legislature has clearly indicated the temporal reach of the amended statute. CommonwealthEdison, 196 Ill. 2d at 38. If so, then, absent a constitutional prohibition, that expression of legislativeintent must be given effect. Commonwealth Edison, 196 Ill. 2d at 38. If not, then the court mustdetermine whether applying the statute to past events would have a retroactive impact, i.e., whetherit would impair rights a party possessed when he acted, increase a party's liability for past conduct,or impose new duties with respect to transactions already completed. Commonwealth Edison, 196Ill. 2d at 38. If there would be no retrospective impact, then the amended law may be applied to pastevents. Commonwealth Edison, 196 Ill. 2d at 38. If, however, applying the amended law to pastevents would have a retrospective impact, then the court must presume that the legislature did notintend that it be so applied. Commonwealth Edison, 196 Ill. 2d at 38.

We begin the Landgraf analysis by inquiring whether Public Acts 81--779 and 81--821, whichstruck the five-year limitation on special hard road tax levies, indicated the statute's temporal reach. Public Act 81--779 repealed the five-year limitation in sections 6--601 and 6--602 and also addedsection 6--602.1, which provided that any special hard road tax levy approved after April 3, 1979,would remain in effect until repealed by referendum. Public Act 81--821, approved several days later,added section 6--617, which provided generally that, once levied, a special hard road tax levy wouldremain in effect until repealed by referendum. Thus, the amendments had prospective as well aslimited retrospective effect. Construing sections 6--602.1 and 6--617 together, we can ascertain thetemporal scope of the amendments repealing the five-year limitation on special hard road tax levies: the repeal applied not only prospectively to levies approved after January 1, 1980 (the effective dateof the amendments), but also retrospectively to levies approved between April 3, 1979, and January1, 1980. Landgraf compels us to give effect to the temporal scope of a repeal if there is noconstitutional bar. Neither party cites one. Thus, had the amendments remained unaltered, theDistrict's 1979 levy, having been passed after April 3, 1979, would have fallen under the retrospectivescope of section 6--602.1 and hence remained in effect until repealed by referendum.

Public Act 81--1509, however, altered the scheme by repealing section 6--602.1 and with itthe express provision that the elimination of the five-year limitation applied retrospectively to allspecial hard road tax levies approved after April 3, 1979. However, the repeal left intact section 6--617, thus retaining the prospective effect of the amendments. From this we can infer the temporalscope of this partial restoration of the five-year limitation: special hard road tax levies approvedbetween April 3, 1979, and January 1, 1980 (the effective date of Public Acts 81--779 and 81---821),are again subject to the five-year limitation, but levies approved after January 1, 1980, remain in effectuntil repealed by referendum. Landgraf compels us to honor the temporal scope of a repeal if thereis no constitutional bar. Neither party points to any such bar. Accordingly, we view the repeal ofsection 6--602.1 as again subjecting the District's April 10, 1979, special hard road tax levy to thefive-year limitation. As the 1979 levy lapsed five years after it was approved and was never renewed,the 1996 levy (which the District based on the 1979 levy) was ultra vires.

The District suggests that, even if we resolve the Landgraf issue against it, we should stilluphold the 1996 tax because the District relied on the repeal of the five-year limitation to its detrimentin failing to renew the 1979 levy. The sole authority the District cites for this reliance claim is thesupreme court's holding in Commonwealth Edison, 196 Ill. 2d at 42, that Will County's property taxlevy, which was imposed before the effective date of the statute relied upon, was valid because thestatute unequivocally provided that levies adopted before its effective date were valid. We appreciatethat in this case, too, the government relies on a statutory provision, section 6--601.2, that expresslygoverns events occurring before its effective date. However, section 6--601.2, unlike the statute inCommonwealth Edison, was repealed and with it the retrospective effect. Thus, the District lacksspecific statutory authority for its suggestion that the 1979 levy was not governed by the five-yearlimitation. The District is left, then, with the claim that it relied on the rescission of the five-yearlimitation to its detriment. Commonwealth Edison, however, said nothing about reliance claims. Therefore, because the District has supplied no relevant authority for its reliance argument, we rejectit.

The special concurrence agrees with our analysis but suggests that, even if the legislature hadexpressly indicated that the repeal of the five-year limitation extended back to the 1979 levy, we couldnot apply the law as written because it would have a retroactive impact. The special concurrenceappears to assume that retroactivity is an absolute bar to the retrospective application of a statuteeven if the legislature has indicated its temporal scope. Under Landgraf, however, a statute whosetemporal scope is indicated must be applied as written "absent a constitutional prohibition." Commonwealth Edison, 196 Ill. 2d at 38. A retroactive tax measure is unconstitutional only whenits effect is peculiarly "harsh and oppressive." Commonwealth Edison, 196 Ill. 2d at 43. Based on the foregoing, we conclude that, because the District's 1979 special hard road taxlevy expired five years after it was approved and the District never renewed the levy, the 1996 roadtax was ultra vires and therefore invalid. Because our resolution of this issue disposes of this appeal,we do not address the remaining arguments against the 1996 tax.

For reasons stated above, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

BYRNE, J., concurs.

JUSTICE McLAREN, specially concurring.

I agree with all that is stated in the majority opinion. I believe that there are additional basesto affirm the trial court that are not declared in the majority opinion. The majority states: "If not, thenthe court must determine whether applying the statute to past events would have a retroactive impact,i.e., whether it would impair rights a party possessed when he acted, increase a party's liability forpast conduct, or impose new duties with respect to transactions already completed. CommonwealthEdison, 196 Ill. 2d at 38. If there would be no retrospective impact, then the amended law may beapplied to past events." Slip op. at 5.

I believe the amendatory language would have a retroactive impact because it would increasethe liability of taxpayers to pay the tax in question past the five-year limitation that was in effect atthe time of the referendum. I also believe that the amendatory language would impose new duties ontaxpayers because the effect of the amendment would place a new duty upon at least 25 taxpayersto institute a referendum to terminate the tax in question, which they were not required to do priorto the passage of the amendatory legislation. Therefore, assuming arguendo that the statute wasintended by the legislature to be retrospective, I believe the amendatory language should not be givenretrospective effect under the circumstances of this case for the additional bases set forth above.