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Social service providers want court to treat their contracts like AFSCME’s

Wednesday, Dec 21, 2016

* From Andrea Durbin at the Illinois Collaboration on Youth…

Hi Rich,

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.

- Posted by Rich Miller        

  1. - Skeptic - Wednesday, Dec 21, 16 @ 3:10 pm:

    Wait a second, they’re saying I have to give back 18 months of salary because of a wrongful injunction? And they want people to support them?

  2. - RNUG - Wednesday, Dec 21, 16 @ 3:14 pm:

    Think I suggested the service providers bring a case like this about a year or 18 months ago. Going to be interesting to see how it plays out.

  3. - Anonymous - Wednesday, Dec 21, 16 @ 3:18 pm:

    There are clear differences in state and federal law between vendors and employees. But the argument that the governor has been derelict by not cancelling contracts he issued without appropriations could change things significantly.

  4. - Oswego Willy - Wednesday, Dec 21, 16 @ 3:19 pm:


    Boy, this might change things.

    I’ll be watching this closely.

  5. - Present - Wednesday, Dec 21, 16 @ 3:23 pm:

    As a state employee, well done.

  6. - Johnnie F. - Wednesday, Dec 21, 16 @ 3:24 pm:

    Of course this really applies to all state employees, including merit comp and all the Rauner Superstars…not just AFSCME represented professionals.

  7. - Roman - Wednesday, Dec 21, 16 @ 3:25 pm:

    Let’s hope the plaintiffs prevail — the threat of a total government shutdown it’s the only foreseeable way out of this mess.

    It’s happened before. Unlike the present and previous Comptroller, the office was once occupied by someone who took her oath to uphold the constitution seriously:

  8. - Anonymous - Wednesday, Dec 21, 16 @ 3:33 pm:

    Who is it they’re demanding 4 billion in restitution to and from? Who do they demand ponies up that money, and where would it go?

  9. - Team Sleep - Wednesday, Dec 21, 16 @ 3:41 pm:

    3:33 - like this?!

  10. - cdog - Wednesday, Dec 21, 16 @ 3:45 pm:

    Great job on behalf of plaintiffs and their clients.

    Are plaintiffs asking for damages?
    If so, are treble damages a possibility?

    That just might get somebody’s attention.

    (layperson view)

  11. - Nick Name - Wednesday, Dec 21, 16 @ 3:47 pm:

    “…the breakdown of constitutional government in the State of Illinois.”

    It’s about time someone said it. Because that is what you have when the chief executive refuses to sign a budget and works to fulfill a campaign promise to shut down state government.

  12. - Honeybear - Wednesday, Dec 21, 16 @ 3:50 pm:

    I’ve never been face to face with a nuclear warhead. I wonder if it might feel similar to the gut twist and immediate fear I just felt.

  13. - Chicago_Downstater - Wednesday, Dec 21, 16 @ 3:51 pm:

    Anyone on here with a background in law know if this actually has a chance? I don’t want to get my hopes up too high.

  14. - thoughts matter - Wednesday, Dec 21, 16 @ 3:52 pm:

    Well done. Just one thing… hopefully the courts will rule that state employees cannot work if they are not paid. Otherwise, no one will notice anything except for the state employees and their banks, and nothing will change.

  15. - Chicago_Downstater - Wednesday, Dec 21, 16 @ 3:55 pm:

    Also, I’m sorry you’re scared. It seems pretty heartless to root for a government shut down. I know it’ll hurt a lot of people. It’s just that there’s already so many folks hurting and a government shut down might be the most likely way to finally end this budget impasse.

    Still little comfort I’m sure.

  16. - Just Sayin' - Wednesday, Dec 21, 16 @ 3:57 pm:

    “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.”

    Ya, because the State would win meaning whomever pushed for the appeal would be responsible for the withholding of all the employees paychecks. #PoliticalSuicide. Plaintiff is right, no difference between AFSCME non-appropriated contract and any other non-appropriated contract the state entered into.

  17. - Roman - Wednesday, Dec 21, 16 @ 4:11 pm:

    == whomever pushed for the appeal would be responsible for the withholding of all the employees paychecks. ==

    @ Just Sayin’, that’s exactly right. And it’s why Lisa Madigan didn’t appeal the St. Clair County decision. I gave Munger and Mendoza a hard time above for ignoring the constitution, Lisa deserve a hard time for not zealously defending it.

    Politics before the law for all three.

  18. - Honeybear - Wednesday, Dec 21, 16 @ 4:12 pm:

    Thanks downstater. No I get it. I want this to end as well. We are a two state worker household. I don’t trust anyone to actually fix this. I think there’s a higher chance of the state just failing. Rauner won’t fold. Madigan won’t fold. The well is poisoned. I was looking at county and municipal jobs. I turned down a job last month. I want to serve my state. I really do. It’s really tough emotionally. I’m not going to the family Christmas gathering at my mother in laws. We avoided thanksgiving by going to Chicago. I’m just too volatile. I just know a conservative relative would make a stupid comment and I’d regret my reaction. Yeah, I’m super scared. Nearly lost it all in the Great Recession. This crap brings that fear right back. Part of me knows it might have to go there. But people don’t realize that real families, families loyal to state service might get really hurt economically.

    Change isn’t hard for Rauner

    Rauners change is hard for my family

  19. - Cubs in '16 - Wednesday, Dec 21, 16 @ 4:19 pm:

    @CD 3:55 pm

    As a state worker I would much prefer a shutdown to a strike. I support a family of 5 so it would be a huge sacrifice and scary as heck but if this is what it takes for Rauner to meet his Constitutional obligations then I’m on board.

  20. - Jon - Wednesday, Dec 21, 16 @ 4:26 pm:

    This is where AFSCME pushes their legislative allies for a continuing appropriation for state employee salaries.

  21. - Honeybear - Wednesday, Dec 21, 16 @ 4:28 pm:

    Cubs 16, the horror is that Rauner may maneuver to being both against us. Shut down then force a strike or eat the contract. Brother you it will destroy us entirely as a workforce. The loss of morale alone would grind us to a halt.

  22. - Consideration - Wednesday, Dec 21, 16 @ 4:35 pm:

    “This is where AFSCME pushes their legislative allies for a continuing appropriation for state employee salaries”

    Would also like to see passage of a law that does not allow many state agencies to be privatized, a la IDOC. That would put a hamper on Rauner out-sourcing.

  23. - Cubs in '16 - Wednesday, Dec 21, 16 @ 4:37 pm:


    It could happen that way. I don’t let the doomsday scenarios play out in my mind. I’ve come to the conclusion almost all of this is beyond my control so I’ll just show up for work till someone tells me not to or I reach my retirement date. I continue to hold out hope that someone somewhere won’t allow our workforce to completely collapse. But I do see the max exodus you talk about in my own area. Just when you think morale can’t drop any lower…

  24. - Huh? - Wednesday, Dec 21, 16 @ 4:39 pm:

    If there is a shut down, run (don’t walk) to the nearest unemployment office and apply for benefits. See if you can apply on line. Living on unemployment is not easy, but it is better than nothing. Been there, done that for a year during the great recession. Held it together by the love of a good woman and support from family.

    The State has been through worse. The State will survive and live another day. As I told my family during an email flame war, the sun will come up tomorrow. We won’t know if the day will be nice and sunny until we walk out the door. But however the day turns out, peace and go with your God.

    Best wishes for a safe and happy holiday.

  25. - Honeybear - Wednesday, Dec 21, 16 @ 4:40 pm:

    Cubs and cd, you think Rauner will break and compromise at all? This has been the plan all along. Feature not bug. This is the nuclear tipped wedge and we will not make it out. This is our Galipoli. Rauner bet everything on this. He must see it through or go down entirely. Why if not for the Ragnarok upon us? The blame must be pinned.

  26. - Honeybear - Wednesday, Dec 21, 16 @ 4:43 pm:

    I didn’t think about unemployment. Still in strike mode. I don’t know how unemployment would work though since I think IDES processes that. Is it automated I wonder?

  27. - Robert the 1st - Wednesday, Dec 21, 16 @ 4:53 pm:

    =Would also like to see passage of a law that does not allow many state agencies to be privatized, a la IDOC.=

    Private prisons are already outlawed in IL.

  28. - Consideration - Wednesday, Dec 21, 16 @ 5:02 pm:

    “Private prisons are already outlawed in IL.”

    Yes. That’s why I said there should be legislation for other state agencies to have the same rules as IDOC.

  29. - Illinoised - Wednesday, Dec 21, 16 @ 5:09 pm:

    Eureka! First good news in a long while.

  30. - facts are stubborn things - Wednesday, Dec 21, 16 @ 5:10 pm:

    We need a pressure point. No k-12, no pay for state employees etc. This is a death by a thousand needles and it must come to and end.

  31. - Anon221 - Wednesday, Dec 21, 16 @ 5:30 pm:

    On the unemployment- when we had the fed shutdown, some of my co-workers applied for unemployment. Just remember, if you end up getting all or part of your back pay after a shutdown, you may need to repay those unemployment dollars. Be sure to ASK several IDES staffers that query, and get their responses in writing.

  32. - Molly Maguire - Wednesday, Dec 21, 16 @ 5:31 pm:

    Rauner is finally getting the faceoff he wanted: human services versus labor (Ed.: false choice)

  33. - Telly - Wednesday, Dec 21, 16 @ 5:36 pm:

    == We need a pressure point. ==

    Amen. Good for the plaintiffs (and good for Dave Koehler for having the guts to say the school shouldn’t open until there’s a budget.)

    It’s clear that the Guv and GA are not going to work this out. We need the third branch of government to do their job.

  34. - Robert the 1st - Wednesday, Dec 21, 16 @ 5:49 pm:

    My mistake. But the Dems don’t have the numbers to pass any legislation like that.

  35. - tobias846 - Wednesday, Dec 21, 16 @ 6:28 pm:

    Why are people assuming that a total government shutdown would break the impasse? If Rauner does not care about the damage inflicted thus far, why on earth would he care about prison riots or schools closing?

    The whole state could be in flames and he’d still be saying, “If we could get term limits…”

  36. - RNUG - Wednesday, Dec 21, 16 @ 7:13 pm:

    == If Rauner does not care about the damage inflicted thus far, why on earth would he care about prison riots or schools closing? ==

    We can’t know for sure about the prisons, but he did make sure to sign the K-12 funding bill the first year. It was the ONLY funding bill he signed, so that would imply he cares about K-12.

  37. - Clodhopper - Wednesday, Dec 21, 16 @ 7:16 pm:

    So if the state is shutdown and IDES is a state agency not exactly sure how all that would work.
    Most of the process is online and automated but humans are still involved in the process at certain levels for benefits to actually be processed and paid.
    Don’t mean to be a downer, just saying.
    I hope unemployment is an option if a shutdown should happen. My daughter and son-in-law are both state employees. I think my daughter would have lost her mind over all if this if it were not for her faith in God.

  38. - RNUG - Wednesday, Dec 21, 16 @ 7:34 pm:

    IDES gets some federal money. Most likely not shut down, but it will depend on exactly what court orders get issued and federal intervention, if any.

  39. - Clodhopper - Wednesday, Dec 21, 16 @ 7:48 pm:

    I know IDES receives federal dollars. I think my point was more that employees at IDES are state employees, maybe just didn’t say it so well. So if state is shutdown, even tho it may only require a minimal amount of human involvement, just saying not sure how all of that would work out.

  40. - Clodhopper - Wednesday, Dec 21, 16 @ 8:28 pm:

    Just as an aside. IDES is not fully funded by federal money.

  41. - Blue dog dem - Wednesday, Dec 21, 16 @ 8:43 pm:

    Rauner knows. Rauner knows there are lots of votes when it comes to K-12. Down state. Up state. Doesnt matter. Social services? If your not directly affected you dont even know there is an issue.

  42. - Present - Wednesday, Dec 21, 16 @ 9:13 pm:

    @Blue dog dem, sadly I know state workers who qualify for those services. More so in the future me thinks.

  43. - Blue dog dem - Wednesday, Dec 21, 16 @ 9:48 pm:


  44. - Generation X - Wednesday, Dec 21, 16 @ 11:20 pm:

    The State has no obligation to pursue the initial Temporary order that required all State employees to be paid. That is a Red Herring and will have no legal significance. Further complicating matters for the Social Service Providers and their lawsuit is the Supreme Court ruling that the State does not have to pay the backpay to State employees without appropriations.

    The Courts will find any and every way possible from deciding who get what in budgetary matters and this is no different. There is plenty of precedent cover for the Courts to utilize to easily sidestep this suit.

Sorry, comments for this post are now closed.

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