* From Andrea Durbin at the Illinois Collaboration on Youth…
Thought you would be interested to see the brief we filed with the Illinois Appellate Court on the Pay Now Illinois case. As you know, we are fast approaching the end of the calendar year, and with it the expiration of the stopgap spending bill. The expiration of the stopgap, and lack of any state budget, means that providers face tremendous uncertainty about when they will be paid for the work that they do and how they will manage to keep critical services flowing to keep individuals, families, and communities safe and healthy.
The full brief is here.
* Let’s look at their AFSCME argument…
The emergency basis for this direct appeal is the breakdown of constitutional government in the State of Illinois. This Court is well aware of the budget impasse between the General Assembly and Governor—now well over a year, and possibly to continue into 2017. A patchwork of court orders has kept up payment to some creditors of the State and not others. Some of the court orders require payment of pass-through federal funds, including Medicaid payments, which do not require consented-to appropriations. But there is one enormous exception. Without any consented-to appropriation, and by order of the Appellate Court, every single State employee, including many who work for the judicial branch, is receiving his or her salary as due on the same regular periodic basis… To date, notwithstanding Article VIII, Section 2(b) of the Illinois Constitution and by a court order that has been left undisturbed for eighteen months, the Comptroller has paid out over $4 billion to state employees without any consented to appropriation by the General Assembly… Significantly, though the State initially sought and was denied direct appeal to the Illinois Supreme Court, R. C2782, the State has filed no further appeal or motion since the Appellate Court’s decision to dissolve the order and has been content to leave this temporary restraining order in place by agreement and without pressing for a ruling on the merits.
Meanwhile, in the instant case, the defendants have vigorously opposed a similar action seeking a much smaller payment—precisely for lack of a consented-to appropriation. Furthermore, the Circuit Court inexplicably has failed to provide the same judicial treatment—and since there is no opinion, this Court can only guess the rationale for such a disparity. There is no “classification” that can justify this unequal treatment— and no reason why the Illinois courts should give priority to one kind of payment without a consented-to appropriation while denying another. It is especially unconscionable to inflict such an injury on those who serve the neediest citizens of the State. In AFSCME, the Appellate Court in the Fifth District justified upholding what has become a massive billion-dollar expenditure to State employees because of only a tentative and preliminary assessment that there was a valid legal claim of unlawful impairment of the obligation of contracts. Accordingly, if this Court finds that there is no legal claim of impairment in this case—a ruling on the merits—then it follows that the order of the Court in St. Clair County now paying the state employees—which is based only on a tentative or preliminary assessment of the same legal claim—has to be dissolved immediately as well. Furthermore, under state law, there should be full restitution of $4 billion for wrongful issuance of a preliminary injunction.
* And now this…
Plaintiffs recognize that the Governor and General Assembly have legitimate differences about the budget—or the Governor’s purported reform agenda as a condition for even having a budget. Plaintiffs have no position as to the merits of this political dispute. However, the Governor has in fact entered these contacts and continues to accept services without payment. He has chosen not to cancel or revoke the contracts, as he has power to do under provisions like Section 4.1 quoted in the Statement of Facts. The Governor could have used his line item veto authority to approve those parts of the budget bills—enacted in June 2015 and again in June 2016—that funded the contracts that he and the other defendants continue to enter and enforce. The defendants are always free to cancel the contracts prospectively: what they may not do, or what arises to an abuse of the powers of their offices, is to enter and continue the contracts without paying for them. Accordingly, under the well established “officer exception” to sovereign immunity, Illinois courts can issue prospective injunctive relief to specifically perform the contracts and become current in payments. Or put another way, the court has full equitable authority to bar defendants from both affirming and disaffirming the contracts all at once. Or to put it colloquially, defendants may not have their cake and eat it too.