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Yet another twist in legislative salary case
Thursday, Oct 3, 2013 - Posted by Rich Miller * Gov. Pat Quinn asked the Illinois Supreme Court to hear a direct appeal of Judge Neil Cohen’s decision that killed off his veto of legislative salaries…
That’s an interesting twist because legislative furloughs have been approved time and time again. I made an argument in today’s Capitol Fax that Quinn might’ve looked at the wrong angle. But there’s something else that I didn’t mention because I didn’t realize it at the time. Lawyers for Cullerton and Madigan argued earlier in the case that the furlough laws were, plain and simply, unconstitutional. They’ve remained on the books because nobody has ever challenged the constitutionality of the furlough laws. So, there’s an interesting argument from the two legislative leaders. “So what? We passed unconstitutional bills. So sue us.”
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- Thomas - Thursday, Oct 3, 13 @ 10:33 am:
I’m not an attorney, but I didn’t think you could introduce new arguments on appeal. If Quinn’s lawyers didn’t make the furlough argument in front of Cohen, can they now?
- D P Gumby - Thursday, Oct 3, 13 @ 10:37 am:
There certainly precedent for the point that the GA has its own authority to determine what is “constitutional”. Remember the single-subject cases where the GA combined things for years under some very broad subject topics until finally the Supremes said “public safety” was not a single subject to justify the Christmas tree bill at issue.
- Norseman - Thursday, Oct 3, 13 @ 10:38 am:
=== So, there’s an interesting argument from the two legislative leaders. “So what? We passed unconstitutional bills. So sue us.” ===
Exactly! With the furloughs, they knew the politics would deter the “victims” from suing.
With pension reduction, at least one leader is playing lip service to the constitutionality concerns. That being Cullerton saying that consideration allows for changes, except those considerations result in a diminished financial state for public workers and retirees.
- Norseman - Thursday, Oct 3, 13 @ 10:42 am:
=== I’m not an attorney, but I didn’t think you could introduce new arguments on appeal. If Quinn’s lawyers didn’t make the furlough argument in front of Cohen, can they now? ===
They did make the argument to Cohen. The line Rich references was in response to Quinn’s brief to Cohen. So this is not a new introduction of an issue. I haven’t read the motion yet, but I suspect they are just re-wording and enhancing that original point.
Lawyers - correct me where I go wrong.
- Michelle Flaherty - Thursday, Oct 3, 13 @ 10:42 am:
Everything’s constitutional until a court says it isn’t.
By the time Quinn’s done appealling all the way to the Jedi council, furloughs will be tossed out, lawmakers will get backpay and the House will have 177 members.
- walkinfool - Thursday, Oct 3, 13 @ 10:45 am:
Is this Quinn’s new legal argument?:
“If the Legislature voting to cut their own pay is OK, then my cutting their pay by line-item veto is also OK.”
And this is causing the Legislator’s lawyers to argue that both were unconstitutional?
What mess these lawyers can make!
What part of a “violation of Separation of Powers” don’t they get? Or is that not a Constitutional argument?
Oh well.
- Norseman - Thursday, Oct 3, 13 @ 10:46 am:
Michelle, you’re priceless.
- Wensicia - Thursday, Oct 3, 13 @ 10:48 am:
==Everything’s constitutional until a court says it isn’t.==
Exactly.
- Mokenavince - Thursday, Oct 3, 13 @ 10:49 am:
I think Quinn may realize that Cohen would tend to side with the guy who got him to where he’s at.
The Appellate can make laws, he may have a better chance there. Let’s face it Madigan and Cullerton
are not going to ever endorse Quinns pension reforms.
This will go on for years and years.
- dupage dan - Thursday, Oct 3, 13 @ 10:51 am:
I remember a stream where I got lambasted for calling someone a criminal even tho they hadn’t been convicted of commiting a crime. Kinda like ==Everything’s constitutional until a court says it isn’t ===
Splitting a split hair, ain’t it?
- Oswego Willy - Thursday, Oct 3, 13 @ 10:54 am:
===Everything’s constitutional until a court says it isn’t.===
Perfect! As for the rest, so much of what - Michelle Flaherty - is said, with so few of “the words”.
To the Post,
This “twist”, is it based on the “consent” of the party having the damage put upon it?
If so, is the idea that recognizing the Constitution in the salary instance more about the allowing or not allowing the “injury”, even though both “injuries” may be unconstitutional in their actions?
No snark on this, asking.
My stance is not going to change at this point, that one Co-Equal Branch can not extort to get a result, and that expectation and it being fulfilled can not lead to a “reward” of fulfilling the 1st party’s “expected and wanted result.”
- Just Observing - Thursday, Oct 3, 13 @ 10:58 am:
Local governments (maybe even knowingly) often pass unconstitutional or otherwise unlawful laws because they know the chances of being sued are very slim, and even if they are sued, its the taxpayers money (not their own).
- wordslinger - Thursday, Oct 3, 13 @ 10:58 am:
==Everything’s constitutional until a court says it isn’t.==
That’s exactly right. Justice Marshall took upon himself the concept of judicial review way back in the day to stick it to his cousin TJ in Marbury v Madison.
- humm - Thursday, Oct 3, 13 @ 11:07 am:
== There certainly precedent for the point that the GA has its own authority to determine what is “constitutional”. ==
The GA doesn’t have authority to determine if something is constitutional - only a judiciary can determine if a law is constitutional. A statute is presumed constitutional and the party challenging it bears the burden of demonstrating its invalidity.
- Michelle Flaherty - Thursday, Oct 3, 13 @ 11:08 am:
Dup Dan,
People are presumed innocent until proven guilty and laws are presumed constutional until ruled otherwise.
- blahblahblah - Thursday, Oct 3, 13 @ 11:09 am:
Willy said “If so, is the idea that recognizing the Constitution in the salary instance more about the allowing or not allowing the “injury”, even though both “injuries” may be unconstitutional in their actions?”
I think this is Quinn’s way of saying they did first so why can’t I do it. He’s a petulant child who doesn’t like that his toys were taken away.
- otoh - Thursday, Oct 3, 13 @ 11:17 am:
Quinn needs to stop. This isn’t populist, this isn’t even logical.
- Oswego Willy - Thursday, Oct 3, 13 @ 11:26 am:
- Michelle Flaherty -,
Well said. Otherwise, every indictment would be a conviction waiting to be overturned.
If Quinn loses the appeal, I guess this “arguement” about the furloughs can be an addtion to his take that what he did was “right”, even if the loses …again.
Lose in Court, continue to win the Populist arguement I guess …
- RNUG - Thursday, Oct 3, 13 @ 11:28 am:
Michelle,
On point AND concise. I need to hire you to edit my comments … LOL
- Norseman - Thursday, Oct 3, 13 @ 11:30 am:
=== Let’s face it Madigan and Cullerton are not going to ever endorse Quinns pension reforms ===
And what reforms would that be? Quinn hasn’t put forward any pension reduction proposal.
- Norseman - Thursday, Oct 3, 13 @ 11:44 am:
=== Everything’s constitutional until a court says it isn’t. ===
I understand this is the legal standard. In fact, the courts are to do their best to find laws to be constitutional. I believe that was the basis for Roberts ruling affirming Obamacare.
However, I have a philosophical problem with a legislative body taken an action that violates the plain language of the constitution on the off chance that the law will not be challenged or some court will use some twisted logic to affirm it.
- siriusly - Thursday, Oct 3, 13 @ 11:50 am:
He was for the constitution before he was against it.
- Formerly Known As... - Thursday, Oct 3, 13 @ 11:59 am:
=== “So what? We passed unconstitutional bills. So sue us.” ===
Pride before the fall?
- RNUG - Thursday, Oct 3, 13 @ 12:18 pm:
Is there a statute of limitations on suing over legislative actions? If not, maybe one of the good government groups should take them up on the challenge …
- Just Me - Thursday, Oct 3, 13 @ 12:22 pm:
It wouldn’t be Illinois without our biannual Constitutional Crisis.
- Mokenavince - Thursday, Oct 3, 13 @ 12:32 pm:
***** Norseman****
What ever Quinn puts forward will be ignored, we all know it’s Madigan’s or Cullerton’s way.
They have a large round file for any of Quinn’s ideas.
- Norseman - Thursday, Oct 3, 13 @ 12:43 pm:
=== Is there a statute of limitations on suing over legislative actions? If not, maybe one of the good government groups should take them up on the challenge …===
I don’t believe there is a statute of limitations for constitutional issues. I do think there would be a problem with good government types initiating a lawsuit. It is my understanding that you have to have standing and have experienced some harm to sue. For this issue, that would be the legislators themselves.
I’m curious to see if they try another furlough bill next session. That may be an interesting debate.
- Norseman - Thursday, Oct 3, 13 @ 12:48 pm:
=== What ever Quinn puts forward will be ignored, we all know it’s Madigan’s or Cullerton’s way. They have a large round file for any of Quinn’s ideas. ===
LOL. That’s because Quinn’s ideas change weekly. It’s hard to keep up with all his different positions. With respect to pensions, he hasn’t even come up with any idea to change.
- blahblahblah - Thursday, Oct 3, 13 @ 2:50 pm:
= It wouldn’t be Illinois without our biannual Constitutional Crisis. =
I want that on a tshirt!
- unbelievable - Thursday, Oct 3, 13 @ 4:35 pm:
Under a seperation of powers argument, aren’t the furloughs different because the legislature did it to themselves? They passed unanimously or close to it. They weren’t imposed by another branch. I have heard some legilsators say privately that they never thought furloughs would be upheld if they were challenged. Didn’t something happen like this in Cook County were commissioners said their pay could’t be reduced by furlough and it was upheld? Can someone tell me if I’m “Misremembering” that?
- Just The Way It Is One - Thursday, Oct 3, 13 @ 9:41 pm:
Not a dumb argument by Pat Quinn, really, which we’d heard mutterings about in his Court Appearances in the matter previously, although the circuit court judge refused to hear arguments about it, and perhaps in error. The reason it might hold some water is simply because Legislative Intent CAN become a key factor in Constitutional interpretation by the Courts–although it is NOT by ANY means the SOLE or most heavily-WEIGHTed factor necessarily. We’ll see if it washes in the end, though…
- Norseman - Thursday, Oct 3, 13 @ 10:44 pm:
=== Intent CAN become a key factor in Constitutional interpretation by the Courts ===
Only when the plain language is ambiguous. Cohen wrote in the opinion:
“In construing a constitutional provision, a court relies on the common understanding of
the voters who ratified the provision, Committee for Educ. Rights v. Edgar, 174 III, 2d 1, 13 (1996); Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 492 (1984). To determine that common understanding, a court looks to the common meaning of the words used, Committee for Educ. Rights, 174 Ill. 2d at 13. Where the meaning of the language at issue is plain and unambiguous, the language will be given effect without further construction. Id.; Maddux v. Blagojevich, 233 Ill. 2d 508, 523 (2009)(”Where the words of the constitution are clear, explicit, and unambiguous, there is no need for a court to engage in construction).”