| by Michael Graham

Cook County President Toni Preckwinkle has an important message for anyone who believes that citizens have a right to make sure the government is acting responsibly and accountably: Not in Cook County.

At least that was the message that President Preckwinkle sent when Cook County sued the Illinois Retail Merchants Association (IRMA) for $17 million in “damages” after an IRMA lawsuit challenged Cook County’s controversial penny-an-ounce sweetened beverage tax.

IRMA is claiming the tax violates the Illinois constitutional requirement that taxes be uniformly applied, and that the tax was unconstitutionally vague. The claims had enough merit for Judge Daniel Kubasiak to issue a temporary restraining order on the tax until the legal challenges could be resolved.

Ultimately, Judge Kubasiak ruled that the sweetened beverage tax did not violate the Illinois Constitution and lifted the restraining order (IRMA has indicated they intend to appeal).

But winning in the circuit court wasn’t enough for President Preckwinkle. In a stunningly hostile move, Cook County (through the State’s Attorney’s Office) has indicated they intend to pursue damages against IRMA to the tune of $17 million—the amount of revenue the county expected the tax to generate during the time it was temporarily restrained.

But regardless of the tax or law that the lawsuit is challenging, it is incredibly troubling for a government body to essentially try to punish any person or private organization for using their constitutional right to challenge something they believe is potentially unconstitutional, like a tax.

Our legal system allows for defendants to file countersuits against plaintiffs, especially if a lawsuit is found to be frivolous. But this is not a frivolous case. The court did not summarily dismiss IRMA’s lawsuit, and it took the time to study all of the issues before issuing a thorough opinion, while still allowing IRMA the ability to appeal.

The county’s aggressive move to punish IRMA triggered significant concern and a warning from Judge Kubasiak, who previously had ruled in favor of the county. During a hearing on August 1, 2017, Judge Kubasiak stated:

“I could find no such case of a governmental body suing a taxpayer who had challenged a tax. I can tell you that I am troubled by this, the chilling effect of the government saying that you best not challenge us because if you are proven wrong we will come and get damages from you [. . .]

“I would like to find any argument that you can make that will support the notion that a taxing body can sue for damages if, in fact, a party asserts their rights under the Constitution to challenge that tax and then is ultimately dismissed [. . .]

“I think this would set a precedent in the state . . . my first reaction is this has a significant chilling effect upon any taxpayer who wishes to challenge government on any action as it relates to anything.”

It’s difficult to view Preckwinkle’s move as anything other than an attempt to punish, bully and intimidate those who have the gall to disagree with her or the county, even if that disagreement stems from wanting to ensure a governmental action is legal. When asked about the enormous sum the county is seeking in damages, Preckwinkle’s spokesperson, Frank Shuftan, responded, “Actions have consequences,” a response that sounds more like a warning to a child, versus an answer to a well-respected trade association filing a legitimate lawsuit challenging a controversial tax.

The fact that Judge Kubasiak described President Preckwinkle’s actions as “chilling” speaks volumes to the audacity of a government body trying to punish a private organization by seeking enormous, punitive damages for simply challenging a law in court (aka, the appropriate venue for challenging a potentially unfair or unjust law).

One of the foundations American governance was established upon is the principle of checks and balances, as was the ability of any citizen—without fear of retaliation—to challenge their government’s actions through the courts.

Cook County trying to punish citizens exercising their constitutional rights is not just chilling; it’s terrifying.

Cook County, and any government body, should never use the courts to prevent dissent, criticism or action from taxpayers. Hopefully, Cook County officials will realize the danger of their actions before a dangerous precedent is set against free speech and a fair, open judicial system.

UPDATE

On Tuesday, President Preckwinkle announced that Cook County would drop their lawsuit against the IRMA for $17 million in “damages.” While this is certainly positive news for keeping an open and fair judicial system for all taxpayers, the fact that President Preckwinkle and Cook County brought the lawsuit in the first place is incredibly troubling and should signal to taxpayers, and voters, a county government willing to abuse its power when challenged.