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AG Madigan files motion to keep capital program alive

Friday, Jan 28, 2011 - Posted by Rich Miller

* Attorney General Lisa Madigan has filed a motion for stay with the Illinois Supreme Court to keep the capital program alive for now. As you know already, an appellate panel declared the law unconstitutional because it violated the state Constitution’s Single Subject Matter rule for legislation. The appellate court claimed that supporters of the law deemed the bill in question as being about “revenue,” when there was a whole lot more to the bill than just revenues.

As I told subscribers earlier this week, that reasoning seems more than a little silly. This was the capital bill. That’s how all the pieces fit together. And Madigan’s motion for stay points that out as well

The State Parties have a substantial case on the merits. In Arangold, this Court upheld against a single subject challenge the State’s budget implementation act for fiscal year 1996, which contained a wide variety of statutory provisions creating and amending state programs and revenues in multiple acts. 187 Ill. 2d at 347-56. The State Parties argued below that the Capital Projects Acts were similarly related to a permissible single subject - the capital projects initiative - that was narrower in scope than implementation of a full year’s budget. (State Parties’ Br. at 28-33.) That argument clearly presents a substantial case on the merits. [Bolding added.]

* The State Journal-Register doesn’t want the General Assembly to take any chances. Instead, it advises, legislators should come back to town next week and immediately pass all the pieces of the capital projects bill save for one

[T]ake video poker out of the formula and revive the $1-a-pack cigarette tax you left on the table last session. That was estimated to bring in $377 million. Communities can’t opt out of that one. Nor will we need a new army of enforcement personnel to make sure the state gets its cut, as we will when video poker machines arrive in hundreds of locations.

* But that could be easier said than done

Some freshman Republican lawmakers, including state Reps. Jason Barickman of Champaign and Adam Brown of Decatur, have already introduced legislation seeking to roll back the recent income tax increases.

Their position on tax hikes indicates that getting any “yes” votes on a re-enacted liquor tax or higher vehicle fees for the construction program would be a stretch.

“I think there will be many legislators, myself included, who will question the wisdom of these funding mechanisms as being reliable sources of revenue for the state,” Barickman said.

Although he supports the construction program because of the jobs it creates, Barickman said it might be better to finance it with savings found in other parts of state government, rather than additional taxes. For example, he said overhauling the state’s public employee pension systems could generate extra money for building roads and bridges.


David Yepsen, director of the Paul Simon Public Policy Institute at Southern Illinois University Carbondale, noted that some Republicans who voted for the tax increases in 2009 might not be willing to do so now.

“Voters are not in any great mood to do any more tax increasing,” Yepsen said.

Gross agreed that passing tax increases now would be difficult.

“I think all bets are off if this court decision is allowed to stand,” [David Gross, SIU’s legislative liaison] said.

Gross could very well be right.

* An understatement

“My prediction would be that the Supreme Court will take this case. It doesn’t have to. It should. I think it should hear this case expeditiously, and I think it should stay the appellate court decision pending a speedy resolution of the case because this is throwing an entire state in more chaos than we were in before,” said Harold Krent, dean, IIT- Kent College of Law.

Chaos R Us.

* Related…

* Supporting record on motion for stay

* Illinois’ choice: Construction jobs or steep liquor tax?

* Work Continues Despite Court Ruling

* Ruling Sends Lawmakers Back to the Drawing Board


  1. - wordslinger - Friday, Jan 28, 11 @ 11:19 am:

    The Supremes have shown they can move fast when they want to. Apparently, they didn’t want to last year with the Burris special election case, for whatever reason.

  2. - Irish - Friday, Jan 28, 11 @ 11:21 am:

    Rep. Jason Barickman of Champaign evidently does not communicate with the U of I which is struggling because there is no money. So we are to endure more flights of fancy from these legislators who reside in Never Never Land, because they cannot face the facts. You cannot cut your way out of the problem we are in. That should be embroidered into a pillow for each of these “dreamers” so they can read it each night before they fall asleep and it is the first thing they see when they wake up.

    He does not think “these funding mechanisms as being reliable sources of revenue”, nor does it appear that he is in favor of the income tax increase. What is his plan? Oh I’ll bet he is going to the “Land of Endless Money” where you can just take what you need and everything is fine. (snark intended)

  3. - 47th Ward - Friday, Jan 28, 11 @ 11:30 am:

    ===Chaos R Us===

    Lol. Well said. Sad but true. Just when you think Illinois politics couldn’t get any weirder…we find new ways of raising the bar on strange, wacky, unpredictable news.

    Of course, if Illinois was boring, we wouldn’t need Capitol Fax. One man’s chaos is another man’s business model.

  4. - VanillaMan - Friday, Jan 28, 11 @ 11:37 am:

    There is only so much logrolling that is permitted and the Capital Bill rolled a few too many.

    Courts have been lenient on this issue understanding and accepting two premises…
    1. The various laws were interrelated.
    2. The various laws would have had a chance of passing on their own.

    While we can debate the interrelationships, the Capital Bill includes sections that stretch the limits of reality on the second part. It was simply not believable that some parts of the Bill would have had the votes necessary to pass on their own.

    The courts have been rather accepting of a legislative body’s take on the political mood coupled with the interrelationships within a law, but upon review simply saw too much within this bill that was not believable.

    All this stinks, but it was the right call.

    Fix it.

  5. - VanillaMan - Friday, Jan 28, 11 @ 11:43 am:

    I would like to see the motion to stay work, but the Law sets up a fiction that should not be depended upon.

    We do not know what is going to pass right now. It is very unethical to base anything upon the current Law.

  6. - piling on - Friday, Jan 28, 11 @ 11:48 am:

    OK, a real question for readers here.
    Barickman says cut existing pensions and use the money to pay for construction projects.
    Would that work as a funding source in the real-world bond markets?

  7. - wordslinger - Friday, Jan 28, 11 @ 11:48 am:

    The impacted revenue bonds that have already been sold also carry the state’s GO pledge. There’s no reason stop work that’s being funded by those bonds.

  8. - Bigtwich - Friday, Jan 28, 11 @ 11:56 am:

    ==The Supremes have shown they can move fast when they want to. Apparently, they didn’t want to last year with the Burris special election case==

    Uh, that was a Federal case.

  9. - sylvia - Friday, Jan 28, 11 @ 11:59 am:

    Don’ worry abat it,dis is Illinoise.It’l woik outt.

  10. - wordslinger - Friday, Jan 28, 11 @ 12:20 pm:

    –Uh, that was a Federal case. –

    Quite right. Mea culpa.

  11. - dave - Friday, Jan 28, 11 @ 12:25 pm:

    Would that work as a funding source in the real-world bond markets?

    Who knows… and who cares? It wouldn’t work in the real world of the IL Constitution.

  12. - John Bambenek - Friday, Jan 28, 11 @ 12:27 pm:

    The Illinois Constitution is enforceable when the ILGA does something against it?

    When did this happen?

  13. - Pembleton - Friday, Jan 28, 11 @ 12:52 pm:

    I see a huge procedural issue here. I think the appellate court jumped the gun. Rocky never even filed this complaint in the circuit court. He had to petition the court to file it as a citizen taxpayer. The court said he didn’t demonstrate a reasonable basis for even filing the complaint. On appeal, the court went right to the merits of the act. The problem is that laws are presumed constitutional and the objector bears the burden of rebutting the presumption by clearly establishing a constitutional violation. I don’t think the appellate court can sua sponte declare the act unconstitutional by usurping the objector’s burden of proving it. It should have said, yes, Rocky has stated a claim for a single subject violation and can file his complaint, then remanded it for proofs.

  14. - Alexander cut the knot. - Friday, Jan 28, 11 @ 12:56 pm:

    No proof was required. The court said the State conceded in argument that the single subject rule presents an issue of law, so no proof is needed on that issue. The purpose of the rule is so people know by the subject of the bill whether they have an interest at stake — relating the bill to “revenue” or to “capital improvements” does not tell anyone whether their ox is going to be gored.

  15. - Anonymous - Friday, Jan 28, 11 @ 1:00 pm:

    What is Krent talking about? When a statute is declared unconstitutional, the appeal is as of right, not at the discretion of the court.

  16. - Esquire - Friday, Jan 28, 11 @ 1:04 pm:

    Too bad, the Madigans did not read the law review article about using the single subject rule to invalidate legislation. It was written by one of their favorite authors, Mike Kasper. lol.

  17. - Commonsense in Illinois - Friday, Jan 28, 11 @ 1:09 pm:

    So I have a few questions that are beginning to make my head hurt:

    1. Since the enabling act upon which bonds were sold with the full faith and credit of the State has now been declared unconstitutional, do the bonds become worthless? What happens to the bond holders…so sad, so sorry?

    2. Is the state under any obligation to seek repayment of any money paid to vendors for completed work since the premise under which contracts were bid, work performed and paid for now improper? Is the state obligated to pay for any completed work not yet paid for?

    3. Can the Supremes issue a decision that says, “we agree this is unconstitutional, but since the horse is out of the barn, we find we have to let it go this time…”? And, if so, how do they do that…is there precedent?

    I have more questions, but again, my head hurts.

  18. - dupage dan - Friday, Jan 28, 11 @ 1:32 pm:

    @ piling on - Friday, Jan 28, 11 @ 11:48 am:

    =Barickman says cut existing pensions and use the money to pay for construction projects=

    You haven’t been on this blog long, have you? The idea of cutting existing pensions (presumably state employee pensions - you don’t specify) has been discussed ad infinitum (nauseum?) here.

    Under the Illinois Constitution, can’t be done.

  19. - John Bambenek - Friday, Jan 28, 11 @ 2:00 pm:

    DuPage Dan-

    You must be new here. The Illinois Constitution requires that expenditures cannot exceed revenues. So the idea that the Constitution is at all restrictive of the General Assembly is novel and interesting, but unconvincing.


  20. - Demoralized - Friday, Jan 28, 11 @ 4:41 pm:

    ==It was simply not believable that some parts of the Bill would have had the votes necessary to pass on their own.==

    That is a completely irrelevant statement in determining single subject.

Sorry, comments for this post are now closed.

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