No.

___________

IN THE
SUPREME COURT OF ILLINOIS

THE AMERICAN FEDERATION OF ) Motion for Direct Appeal

STATE, COUNTY AND MUNICIPAL ) Pursuant to Supreme Court Rule
EMPLOYEES, AFL-CIO, COUNCIL 31, ) 302(b)
et al., )
)
Plaintiffs-Appellees, )
)
v. )
)
BRUCE RAUNER, the Governor of the ) On interlocutory appeal from the
State of Illinois; MICHAEL ) Circuit Court of the Twentieth
HOFFMAN, Acting Director of Central ) Judicial Circuit, St. Clair County,
Management Services; ILLINOIS ) Illinois, No. 15 CH 475, to the
DEPARTMENT OF CENTRAL ) Appellate Court of Illinois, Fifth
MANAGEMENT SERVICES; and ) Judicial District, No. 5-17-0061.
SUSANA A. MENDOZA, the )
Comptroller for the State of Illinois, )
)
Defendants, )
)
THE PEOPLE OF THE STATE OF )
ILLINOIS, ) The Honorable
) ROBERT P. LeCHIEN,
Intervenor-Defendant-Appellant. ) Judge Presiding.

MOTION FOR DIRECT APPEAL PURSUANT TO

SUPREME COURT RULE 302(B)

I. Introduction

The People of the State of Illinois, through their attorney, Lisa Madigan,

Attorney General of Illinois, request leave pursuant to Supreme Court Rule 302(b)

for a direct appeal to the Illinois Supreme Court of the February 16, 2017 order

entered by the Circuit Court of St. Clair County. In that order, the circuit court

1
denied the Peoples motion to dissolve the preliminary injunction requiring the

Illinois Comptroller to process the full state employee payroll in the absence of

enacted appropriations legislation. S.R. 1. The People argued that the Illinois

Supreme Courts decision in State of Illinois v. AFSCME, 2016 IL 118422, foreclosed

the sole legal theory upon which the preliminary injunction was based. S.R. 10-20.

In State v. AFSCME, the Illinois Supreme Court held that the failure to enact

appropriations legislation to pay state employees as required by their collective

bargaining agreements (CBAs) was not an unconstitutional impairment of contract.

2016 IL 118422, 52. Because the Illinois Supreme Court has rejected the sole legal

claim underlying the injunction, it should be dissolved. On February 21, 2017, the

People filed a notice of interlocutory appeal, pursuant to Rule 307(a), of the February

16 order. S.R. 2-4.

The Peoples appeal thus presents a clear legal question concerning whether

the executive and legislative branches must enact appropriations legislation for the

payment of the state employee wages required by certain CBAs (or tolling

agreements extending the terms of those CBAs after they expire while the parties

continue to negotiate), or whether, in the absence of executive and legislative action,

a court may order the continued payment of those wages for years. This question is

extraordinarily important to the operation of state government because it directly

implicates when and how the State may obligate and expend public money. The

People acknowledge the interlocutory posture of this case, but urge the Illinois

2
Supreme Courts immediate involvement is necessary and appropriate to resolve this

matter in the timeliest manner possible.

As Illinois unprecedented budget impasse drags on, the executive and

legislative branches have not had to fulfill their constitutional obligations because of

the legally baseless preliminary injunction. In every other State and at the federal

level, the imperative to prevent even a partial shutdown of government operations

forces the executive and legislative branches to negotiate and enact appropriations

legislation. In Illinois, in contrast, the legislature and executive have never faced the

true consequences imposed by our constitution and instead have relied on the

preliminary injunction to keep all state government operations running for over

twenty months without enacted appropriations legislation.

Thus, although the circuit court may have believed that entering the

injunction in 2015 would give the legislative and executive branches necessary

additional time to pass a budget without facing the hardships of a government

shutdown, the continuation of the injunction has had the opposite effect. The

injunction has allowed the executive and legislative branches to continue to avoid

their constitutional obligation to make the difficult decisions required of them in the

budget process. As a result, serious and collateral damage has been done to the

states universities, college students, non-profit organizations, social service

providers, the vulnerable people they serve, rural transit systems, emergency

telephone systems, companies that provide goods and services to state prisons and

3
other state facilities, and county health departments by the lack of enacted

appropriations legislation.

Further, the circuit courts injunction has spawned many other lawsuits

brought by, for instance, vendors who provide services to the State who have not

been fully paid due to the lack of a complete budget for the last two fiscal years. In

one such suit, dozens of non-profit service providers sued in the Circuit Court of Cook

County, claiming that the failure to pay their contracts in full in the absence of

enacted appropriations legislation was an unconstitutional impairment of contract.

Illinois Collaboration on Youth v. Dimas, Cir. Ct. Cook Cnty. No. 16 CH 6172. While

the circuit court in that case rejected the providers claim, S.R. 173 (this order is on

appeal to the Appellate Court of Illinois for the First Judicial District), many of the

same plaintiffs in that case have now filed a new lawsuit in the Circuit Court of St.

Clair County seeking payments and citing the courts preliminary injunction on state

employee pay as authority for the relief they seek.

All the while, the Illinois Constitution continues to be disregarded. The

Appropriations Clause has existed in Illinois since the original 1818 Constitution and

is at the very core of the state governments ability to spend public funds. The

purpose of the Clause is to provide accountability and transparency for the

expenditure of the States funds. Yet the circuit courts continuing injunction all but

renders the Clause meaningless.

The legislative and executive branches have had more than enough time to

perform their constitutional obligations. An injunction that a court might have

4
viewed as a short-term buffer against hardship has instead become an indefinite

excuse for the legislative and executive branches to not fulfill their duties. The

People therefore ask the Illinois Supreme Court to restore the responsibility for

expending public funds to the proper branches by ending the judiciarys control of the

expenditure of unappropriated funds for state employee wages.

II. The public interest requires expeditious determination by the Illinois

Supreme Court.

This appeal raises a legal question that goes to the foundation of our system of

government and the separation of powers mandated by the Illinois Constitution (see

Ill. Const. art. II, 1). The Illinois Constitution provides that the Governor shall

prepare and submit to the General Assembly . . . a State budget for the ensuing fiscal

year, which shall set forth the estimated balance of funds available for

appropriation at the beginning of the fiscal year, the estimated receipts, and a plan

for expenditures and obligations during the fiscal year[.] Ill. Const. art. VIII, 2(a).

The Constitution further dictates that the Governors [p]roposed expenditures shall

not exceed funds estimated to be available for the fiscal year as shown in the budget.

Id. Following the Governors submission of a State budget, the Appropriations

Clause directs that the General Assembly by law shall make appropriations for all

expenditures of public funds by the State. Ill. Const. art. VIII, 2(b). The public

therefore has a strong interest in both ensuring elected officials constitutional

performance of their duties and in enforcing constitutional limits on the expenditure

of state funds. That interest is directly implicated here, where the legal question is

whether the General Assembly must make appropriations for the payment of state

5
employees wages, or whether a court may order the continued payment of those

wages in the absence of executive and legislative action.

The Appropriations Clause also provides: Appropriations for a fiscal year

shall not exceed funds estimated by the General Assembly to be available during that

year. Id. But during the last two fiscal years, the circuit courts injunctive orders

have allowed billions of dollars in state funds to be spent on employee wages without

estimation by the General Assembly of the funds available. The preliminary

injunction thus flouts another basic requirement of the Illinois Constitution and has

given a blank check to the executive branch for state employee wages.

Plaintiffs sole legal theory upon which the preliminary injunction rests is that

the failure to appropriate funds sufficient to pay employees the amounts required by

their CBAs, or the tolling agreements they entered into after those CBAs expired,

constitutes an impairment of contract in violation of the Contract Clause of the

Illinois Constitution. S.R. 94-96, 163-65. But in State v. AFSCME, the Illinois

Supreme Court held that the failure to appropriate money could not impair the

obligation of contract because the CBAs were always subject to appropriation, and

the appropriation power rests solely with the General Assembly. 2016 IL 118422,

42, 51-52.

In denying the Peoples motion to dissolve the preliminary injunction, the

circuit court distinguished State v. AFSCME on the ground that the Illinois Supreme

Courts decision was limited to an assertion of rights under multi-year CBAs

governed by the Public Labor Relations Act, and that plaintiffs here seek to enforce

6
rights under their tolling agreements.1 The circuit courts analysis, however,

completely ignores the Illinois Supreme Courts principal rationale based on the

Appropriations Clause, id. at 2 ([W]e hold that the arbitration award violates

Illinois public policy, as reflected in the appropriations clause of the Illinois

Constitution (Ill. Const. 1970, art. VIII, 2(b)), and section 21 of the Illinois Public

Labor Relations Act (5 ILCS 315/21 (2014)).), and miscomprehends the nature of the

tolling agreements, which did nothing more than continue the parties rights under

the CBAs, which by their terms were subject to appropriation, S.R. 169.

Unquestionably, there is a strong public interest in the observance of

constitutional requirements and in the constitutionality of the expenditure of public

funds. Rule 302(b) permits direct appeal to the Illinois Supreme Court in cases filed

with the appellate court in which the public interest requires prompt adjudication

by the Supreme Court. Ill. S. Ct. R. 302(b). The Illinois Supreme Court has the

discretion to permit a Rule 302(b) direct appeal from interlocutory orders. Desnick v.

Dept of Profl Reg., 171 Ill. 2d 510, 516 (1996); Garcia v. Tully, 72 Ill. 2d 1, 7 (1978).

The Illinois Supreme Court previously has granted direct review in cases

having a significant effect on the governments finances, see Allegro Servs., Ltd. v.

Metro. Pier & Exposition Auth., 172 Ill. 2d 243, 246 (1996) (challenge to tax for

renovation of McCormick Place); cases involving the publics interest in government

services or public property, see, e.g., Friends of Parks v. Chi. Park Dist., 203 Ill. 2d

1
At the time of this motion, the transcript of that hearing has not been prepared.
When that transcript is available, the People will seek leave to supplement the
supporting record to include it.
7
312, 314 (2003) (use of public funds for improvements to public park for Soldier Field

expansion); Fumarolo v. Chi. Bd. of Educ., 142 Ill. 2d 54, 61 (1990) (public school

reform); and cases concerning public employment, see, e.g., Kanerva v. Weems, 2014

IL 115811, 1 (constitutionality of changes to health insurance of retired state

employees), including payment of public employees in the absence of enacted

appropriations legislation, see, e.g., Jorgensen v. Blagojevich, 211 Ill. 2d 286, 297-98

(2004) (cost-of-living adjustments to judicial salaries). The instant case falls within

each of these categories and thus further establishes that immediate review by the

Illinois Supreme Court is warranted and justified.

It is detrimental to the People to allow the timing of the normal appellate

process to run its course because the impacts of this situation are dire. Illinois is in

an ever-deepening crisis due to the lack of a complete budget for the last two years,

and lasting economic damage is being wrought on the State.2 The core issue

presented by this appeal is a legal question concerning a fundamental constitutional

principle about how the State is supposed to be governed. The answer to that

question is clear under this Courts decision in State v. AFSCME.

* * *

2
As of March 6, 2017, the backlog of bills awaiting payment by the State was over $12
billion. See https://ledger.illinoiscomptroller.com/fiscal-condition/. Among the bills
owed by the State are over $4.2 billion in bills for medical treatment provided by
Illinois doctors and hospitals to patients on state health insurance. See Office of the
Illinois Comptroller, Comprehensive Annual Financial Report For Fiscal Year Ended
June 30, 2016 at 4, http://illinoiscomptroller.gov/ioc-pdf/CAFR_2016.pdf. As a direct
result of the unprecedented failure of the state to enact a full budget for two
consecutive years, Fitch Ratings recently downgraded Illinois outstanding general
obligation bonds to the second lowest investment grade rating. See
https://www.fitchratings.com/site/pr/1018455.
8
 In sum, the circuit courts refusal to dissolve the preliminary injunction allows

unappropriated funds to be spent on the state employee payroll, undermining the

Appropriations Clause and the essential functions it serves. The judiciarys

usurpation of the states budgetary process has lasted for two fiscal years, resulting

in billions of dollars in expenditures and should not be permitted to continue any

longer.

Wherefore, the People of the State of Illinois request that the Illinois Supreme

Court direct that the interlocutory appeal of the circuit courts February 16, 2017

order denying the motion to dissolve the preliminary injunction be transferred to it

for prompt adjudication. The People request that the Illinois Supreme Court order

the appeal to adhere to the briefing schedule provided by Rule 307(a), and that the

Supreme Court set the matter for oral argument in its May 2017 term.

Respectfully submitted,

LISA MADIGAN
Attorney General
State of Illinois

By: /s/ Brett E. Legner

DAVID L. FRANKLIN
Solicitor General
State of Illinois

BRETT E. LEGNER
Deputy Solicitor General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 814-2146
Primary email service: civilappeals@atg.state.il.us
Secondary email service: blegner@atg.state.il.us

9
 CERTIFICATE OF FILING AND SERVICE

The undersigned certifies under penalty of law as provided in 735 ILCS 5/1-109

(2014) that on March 7, 2017 the foregoing Motion For Direct Appeal Pursuant to

Supreme Court Rule 302(b) was filed electronically with the Clerk of the Illinois

Supreme Court, using the i2File system, and was served by e-mail on each person

named below at the address indicated.

Stephen A. Yokich Dennis Murashko

DOWD, BLOCH, BENNETT, CERVONE,
8 South Michigan Avenue, 19th Floor
Chicago, Illinois 60603
syokich@dbb-law.com
Kenton Skarin
Jack Vrett
100 W. Randolph St., 16th Floor
Chicago, Illinois 60601
dennis.murashko@illinois.gov
Kenton.skarin@illinois.gov
Jack.vrett@illinois.gov

John Gay John J. Flood, Clerk

Office of the Comptroller
100 W. Randolph St., 15th Floor
Chicago, Illinois 60601
John.gay@illinoiscomptroller.gov
Appellate Court of Illinois
Fifth Judicial District
14th & Main Streets
Mt. Vernon, Illinois 62864
JFlood@illinoiscourts.gov

/s/ Brett E. Legner

Brett E. Legner
Deputy Solicitor General
100 West Randolph, 12th Floor
Chicago, IL 60601
blegner@atg.state.il.us
 No. ___________

IN THE
SUPREME COURT OF ILLINOIS

THE AMERICAN FEDERATION OF ) Motion for Direct Appeal

STATE, COUNTY AND MUNICIPAL ) Pursuant to Supreme Court Rule
EMPLOYEES, AFL-CIO, COUNCIL 31, ) 302(b)
et al., )
)
Plaintiffs-Appellees, )
)
v. )
)
BRUCE RAUNER, the Governor of the ) On interlocutory appeal from the
State of Illinois; MICHAEL ) Circuit Court of the Twentieth
HOFFMAN, Acting Director of Central ) Judicial Circuit, St. Clair County,
Management Services; ILLINOIS ) Illinois, No. 15 CH 475, to the
DEPARTMENT OF CENTRAL ) Appellate Court of Illinois, Fifth
MANAGEMENT SERVICES; and ) Judicial District, No. 5-17-0061.
SUSANA A. MENDOZA, the )
Comptroller for the State of Illinois, )
)
Defendants, )
)
THE PEOPLE OF THE STATE OF )
ILLINOIS, ) The Honorable
) ROBERT P. LeCHIEN,
Intervenor-Defendant-Appellant. ) Judge Presiding.

ORDER

THIS CAUSE COMING BEFORE THE COURT on the People of the State of

Illinoiss Motion for Direct Appeal Pursuant to Supreme Court Rule 302(b), and due

notice having been given;

IT IS HEREBY ORDERED:

1. The motion for direct appeal to the Illinois Supreme Court is ALLOWED /

DENIED

1
 2. The matter will proceed pursuant to the briefing schedule set forth by

Supreme Court Rule 307(a)

ENTER:

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JUSTICE

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JUSTICE

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JUSTICE

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JUSTICE

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JUSTICE

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JUSTICE

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JUSTICE
DATED:________________
Brett E. Legner
Deputy Solicitor General