Capitol - Your Illinois News Radar » If there is no progress on SB1, could a lawsuit be filed?
SUBSCRIBE to Capitol Fax      Advertise Here      Mobile Version     Exclusive Subscriber Content     Updated Posts    Contact
To subscribe to Capitol Fax, click here.
If there is no progress on SB1, could a lawsuit be filed?

Tuesday, Aug 8, 2017

* Mike Flannery of Fox 32 sent me some scripts from some school funding stories he did last week…

Sources tell Fox 32 News Republican leaders in Springfield believe any public school shutdown would likely be short lived. They’re confident that, just as Downstate judges have repeatedly ordered government paychecks be delivered, a judge can be found to order payment of school aid money. […]

Illinois Policy Institute’s Ted Dabrowski: I certainly think that there are some kids who could sue and say, “Hey, listen! They depend on schools. They need schools.” the funding formula, the way they designed it, was very tricky. They purposely didn’t fund — the only thing they didn’t fund was schools.

* And then Flannery followed up with Ralph Martire on Friday…

Ralph Martire: But there’s no legal basis for a judge to pin that order on. So, that’s not gonna happen — I mean it’s just gonna waste taxpayer money and time. It’s wonderful that conservative groups like wasting taxpayer money so much.

Yeah, well, there’s no sound legal basis for paying state employees without an appropriation, but they found a judge to do it anyway.

* Rep. Steven Reick (R-Harvard), who’s an accountant by trade, posted this legal analysis on his website at the end of July

Chicken Little is now running around saying the sky is going to fall (in the form of schools not opening on time) unless the Governor signs Senate Bill 1, or some other education funding bill that includes an “Evidence Based” funding model. But is that really the case?

Senate Bill 6, the budget bill that was passed over the Governor’s veto several weeks ago contains the following language:

    “The following amounts, or so much thereof as may be necessary, are appropriated to the Illinois State Board of Education for Evidence-Based Funding, provided for in Section 18-8.15 of the School Code.”

While it’s true that Senate Bill 1, if it became law, would add Section 18-8.15 to the Illinois School Code and that section would define “Evidence-Based Funding,” (as of this writing) Senate Bill 1 has not yet been sent to the Governor, so neither the term “Evidence-Based Funding” nor its model of funding is defined in statute. Section 18-8.15 of the Illinois School Code simply does not exist and may never exist. It is a nullity.

What that means is that funding under Senate Bill 6 using the “Evidence-Based Funding” model is contingent upon the happening of a future event (the passage of a bill containing a definition of “Evidence-Based Funding”). There was no language in Senate Bill 6 that made its passage contingent upon the passage of Senate Bill 1. In fact, such contingent language was contained in Senate Bill 1 as introduced, but was omitted by House Floor Amendment 2, which became the bill. The omission of such contingent language is an unambiguous expression of legislative intent that passage of Senate Bill 6 was not contingent upon passage of Senate Bill 1, or vice versa.

What is then left is the phrase.

Under Illinois law, undefined terms in the statute must be given their ordinary and popularly understood meaning. However, in this case, there is no ordinary and popularly understood definition of “Evidence-Based Funding” because any school funding formula, including the formula Senate Bill 1 is intended to replace, is based on evidence. Therefore, the term “Evidence-Based Model” is simply too broad to constrain the appropriation of money for education funding to that particular term.

While the sponsor of SB 1 did a very good job on the floor laying out an argument for the legislative intent behind the term and its application in SB 6, there’s a stronger public policy argument which runs against holding school funding hostage to an undefined term. The idea that an appropriation for education could be halted by language in a bill that may never pass runs afoul of Article X the Illinois Constitution and the clearly expressed legislative intent to fund Illinois’ public schools.

Contained within both SB 1 and SB 1124 is a provision that every school district in the State of Illinois be held harmless, meaning that each school district is to receive at least the same amount of money from the State as it did in the last fiscal year. For example, Senate Bill 1 provides:

    “For the 2017-2018 school year, the Base Funding Minimum of an Organizational Unit…shall be the amount of State funds distributed to the Organizational Unit during the 2016-2017 school year prior to any adjustments and specified appropriation amounts…”

Whether a court would look at Senate Bill 1124 (Republican version) or Senate Bill 1 (Democrat version), an identical and consistent feature is this hold-harmless provision.

You may point out that I’m trying to have it both ways, that I’m arguing that neither SB 1 nor SB 1124 is yet law but still I’m trying to cleave unto a provision contained in those bills that provides for a minimum level of funding that can only be calculated by making reference to provisions contained within those bills.

I won’t argue with you. However, given the strong Constitutional and public policy imperative noted above, the legislature cannot shirk its duty and must provide an appropriation of no less than the amount sent to each school district as was sent in the prior year, adjusted, if necessary, using the formula under which that amount was determined in the prior year.


- Posted by Rich Miller        

  1. - blue dog dem - Tuesday, Aug 8, 17 @ 1:33 pm:

    It won’t be the kids who sue to keep schools open. Yup. You guessed it, the Booster Clubs.

  2. - Arsenal - Tuesday, Aug 8, 17 @ 1:37 pm:

    I’m old enough to remember “Activist judges”. Now the Republican position is “let judges run the schools”? Glory be.

  3. - RNUG - Tuesday, Aug 8, 17 @ 1:46 pm:

    I wouldn’t want to touch that one.

    Suspect any judge it came in front of would duck it, given past rulings over state funding at a specific level, saying an appropriation bill was still alive in the legislative process and it was up to the General Assembly to resolve it.

  4. - Steve - Tuesday, Aug 8, 17 @ 1:48 pm:

    I’ m sure many people would prefer a judge running public education. It’s happened before and look at the glorious results.

  5. - DuPage Saint - Tuesday, Aug 8, 17 @ 1:55 pm:

    Glad the accountant posted his legal opinion

  6. - Moody's Blues - Tuesday, Aug 8, 17 @ 1:55 pm:

    If you’re in neither armed camp, that’s a compelling argument. Whoever inserted the “evidence-based” linkage in the budget legislation had to know it was too cute by half.

    It asks judges to deny children the right to schooling in order to provide this group of grown-up politicians leverage over that group of grown-up politicians.

  7. - 360 Degree Turnaround - Tuesday, Aug 8, 17 @ 1:57 pm:

    Is this what republicans want? How about this, how you do your job and vote for funding.

  8. - Ghost - Tuesday, Aug 8, 17 @ 1:57 pm:

    its an incorrect legal analysis. The plain meaning of the bill is clear. ie there has to be the evidence based formula actually passed into law.

    the regernece to language about contingency being removed is a argument that cant be made. you dont look at history like that if the lnaguage is clear. and the language is clear. The absence of a needed corresponding statute does not make it unclear it means the trigfering provisions do not exist. basically nothing to see here move along.

  9. - Norseman - Tuesday, Aug 8, 17 @ 2:04 pm:

    Interesting kitchen table suppositions. I’d side with the position that the funding gets held up, but wouldn’t bet the farm.

    I would put money on the death of funding reform yet again.

  10. - JS Mill - Tuesday, Aug 8, 17 @ 2:05 pm:

    I talked to an actual attorney, not somebody who pretends to be one on social media, and he believes a legal challenge is possible but unlikely to be successful. The ILSC has indicated in the past that it will not intervene on school funding issues.

  11. - Been There - Tuesday, Aug 8, 17 @ 2:31 pm:

    ===and he believes a legal challenge is possible but unlikely to be successful.====
    Basically the lawsuit to have employees get paid was pretty baseless. I don’t even think the St.Clair Co judge wrote more than a page. After that it was pretty much slow walked and never made it to the supremes. Sometimes being successful just means buying time.

  12. - Wordslinger - Tuesday, Aug 8, 17 @ 2:35 pm:

    That’s the IPI/Rauner game plan? Cede more authority to the courts?

  13. - Annonin' - Tuesday, Aug 8, 17 @ 2:44 pm:

    Reek is an accountant? Scary

  14. - Arthur Andersen - Tuesday, Aug 8, 17 @ 2:51 pm:

    Reick also has a law degree according to his website along with bachelors’ and masters’ in accounting and taxation. He’s an Illini so he has to be smart. /s

  15. - Anon - Tuesday, Aug 8, 17 @ 2:57 pm:

    Per Committee for Educ. Rights v. Edgar, 174 Ill. 2d 1 (1996), the ILSC won’t get in the weeds on parity, efficiency, or levels of funding. But even in Edgar, the ILSC did quote a 1929 ILSC precedent that it can act to effect two mandates, “and these two only, which the courts can enforce: that the schools shall be free, and that they shall be open to all equally.”

    The argument might go as follows: since the GA put in place the current system, by statute, but has refused to provide a mechanism to get enough funds into the system to allow the schools to actually operate, then the GA hasn’t provided the affected children a “free” education at all.

    This isn’t an issue of not having enough ipads for the kids, but instead of not actually having a public school available to attend, at all, for some kids. It looks worse when you toss in the fact that some kids under the GA’s system will receive a full year’s schooling–e.g., suburban districts with adequate property wealth.

    Regardless, the arguments here appear to be different than any of the other IL cases on education funding, so there wouldn’t appear to be grounds to say the result is “certain,” whether for keeping the schools open or shuttering them.

  16. - Free Set of Steak Knives - Tuesday, Aug 8, 17 @ 3:26 pm:

    The approp hangs an the creation of a specific section of the code.

    The intent of a supermajority of both chambers is clear.

    The appropriation of the funds was contingent upon a future event. That isn’t a “nullity,” quite the contrary it is routine in the legal world: I will give you money for this specific, future thing.

    To suggest its an absurdity that the supermajority had no intention of funding only SB 1 or forcing schools to close is in itself absurd. No one ever thought that a governor would intentionally refuse to fund state government for 2+ years, but it happened. We live in strange times, State Rep.

    Reink’s time would be better spent passing a bill.

  17. - illini - Tuesday, Aug 8, 17 @ 3:27 pm:

    @ArthurAndersen - are you actually suggesting that there are actually some graduates of our Alma Mater that are not as smart as you and I?

  18. - Morty - Tuesday, Aug 8, 17 @ 3:38 pm:

    I actually thought Reick’s response was thoughtful and well-reasoned. I don’t know if it will hold legal water, but still

  19. - transplant - Tuesday, Aug 8, 17 @ 3:44 pm:

    Sen. McCarter spoke at a Town Hall meeting today in Sandoval. He suggested not approving any of the current school funding measures and instead passing a stop gap bill and starting from scratch on a funding formula.

  20. - illini - Tuesday, Aug 8, 17 @ 3:48 pm:

    @transplant - once again I am so, so proud of my Senator./s

  21. - transplant - Tuesday, Aug 8, 17 @ 4:05 pm:

    @illini: Yeah, it was pretty awful. The superintendent was almost in tears by the end. Without a funding measure in place, Sandoval schools will close their doors Oct. 2.
    McCarter insisted things wouldn’t get that far but it’s hard to believe that when they assured us the budget standoff wouldn’t last through the first fiscal year …

  22. - Robert J Hironimus-Wendt - Tuesday, Aug 8, 17 @ 4:17 pm:

    Two Thoughts:

    The common and ordinary interpretation regarding what constitutes “evidence-based funding” may or may not be specified, but will be resolved. In education, there are common understandings of evidence, whether it be student numbers, ACT scores, graduation rates, etc. Though these may or may not be specified, a court can fix these.

    If the legislation suggests school districts cannot receive less next year than they received last year, that does suggest “held harmless” will apply to next year. However, down the road, that an become an issue.

  23. - Robert J Hironimus-Wendt - Tuesday, Aug 8, 17 @ 4:28 pm:

    @Anon: You wrote, “the ILSC did quote a 1929 ILSC precedent that it can act to effect two mandates, “and these two only, which the courts can enforce: that the schools shall be free, and that they shall be open to all equally.”

    Does this suggest an argument for why Vouchers will not be deemed unconstitutional? For example, the last clause would not apply to all children in terms of private education. Granting vouchers in McDonough County would amount to NO private education - only the choice between one public school an another.

  24. - Mama - Tuesday, Aug 8, 17 @ 4:47 pm:

    “Senate Bill 1 has not yet been sent to the Governor.”

    That statement has to be false since the governor has already vetoed SB-1.

  25. - Anon221 - Tuesday, Aug 8, 17 @ 5:37 pm:

    McCarter also posted a cow chip meme today. Real classy.

  26. - Arthur Andersen - Tuesday, Aug 8, 17 @ 8:21 pm:

    @Illini, there are a few bad apples in every barrel.

Sorry, comments for this post are now closed.

* Reader comments closed until Tuesday
* Rauner complains it's "hard to overcome" the "biased" Illinois media
* Question of the day: Golden Horseshoe Awards
* Rate Pritzker's new digital ad
* Recent endorsements: Raoul, Biss, Newman, Villivalam
* Joe Berrios' new radio ad features Jesse White, more attacks on Kaegi
* A make-work program for property tax appeals lawyers?
* Rauner tax hike claim ruled "Mostly False"
* Lawsuits expose more problems at Quincy veterans' home
* Could a Moody's methodology change push Illinois into junk status?
* Republicans get into the "holiday spirit"
* Jesse White's GOP opponent: "I'm extremely ordinary"
* Friday open thread
* Yesterday's stories

Visit our advertisers...





* Illinois needs to dictate construction wages so.....
* Newman receives endorsement from former guberna.....
* Rebelling Republican Suburbs Offer Democrats Pa.....
* Rauner keeping public in the dark about rates i.....
* Some Illinois Lawmakers Think It’s Too Soon To .....
* Morning Spin: Mendoza says Rauner can’t take cr.....
* Rauner keeping public in the dark about rates i.....
* Morning Spin: Mendoza says Rauner can't take cr.....
* Morning Spin: Mendoza says Rauner can't take cr.....

* New Bitcoin-based security slightly higher in debut on CME
* Teen killed while delivering newspapers with stepdad
* Metra to modify train schedules during holiday season
* Chicago-area teen accused of pointing replica gun at cars
* The Latest: Electricity fully restored at Atlanta airport
* Chicago taking proposals for reuse of historic city bridge
* No more valedictorian, class ranks at Kankakee High School
* Police: Illinois man dies after crashing ATV in New Mexico
* 14 millionth book for U of I library is professor's work
* Iowa homeless shelter sees high demand for beds

* State paying Medicaid bills before interest piles up
* Food stamps cut to tens of thousands in Illinois
* Statehouse Insider: Holiday cheer from Rauner to Madigan
* Lawmaker's daughter gets probation in political rival attack
* Gov. Rauner unveils Bicentennial Pepsi can
* Video gambling numbers level off in Springfield
* Judge: Video gambling profits must be split with operators
* Under the Dome Podcast: "Objection! (to nominating petitions), Pritzker endorsements
* Schoenburg: Jones leads fundraising in 13th Democratic primary
* Governor candidates want action on Legionnaire’s outbreak at veterans home

* Rauner keeping public in the dark about rates in Medicaid reboot
* Hunter Harrison, famed railroad turnaround CEO, dies at 73
* How City Colleges manipulated graduation rates and won a national award
* Bitcoin takes bigger Wall Street stage with smooth CME debut
* Like our roundup? Share it around.

* Toyota planning 10 purely electric vehicles by 2020s
* Hershey buying maker of SkinnyPop in $1.2 billion deal
* Trump to unveil ‘America First’ national security strategy
* Volkswagen Tiguan is all-new for 2018
* Holiday travel chaos ahead after Atlanta airport outage
* Holiday travel chaos ahead after Atlanta airport outage
* Owl, hawk vs squirrel, 87th St. slip memories: Notes, Chicago outdoors
* Mario Batali gives holiday recipe in same email as misconduct apology
* Doug Jones: Trump shouldn’t resign over misconduct allegations
* Man’s buttocks bruised when bullet hits wallet in East Garfield Park

* Bitcoin futures debut on CME, taking bigger Wall Street stage
* Hunter Harrison, CEO of railroad company CSX, dead at 73
* Cubs Q&A: How many more pitchers will the Cubs look to bring in?
* NFL's notorious catch rule resurfaces in decisive moment. Will it ever be changed?
* Teen helping stepdad deliver Tribune, other newspapers shot dead on Southwest Side
* Panthers owner Jerry Richardson to sell team amid workplace misconduct investigation
* Man wrestles gun from intruder, possibly shoots him during home invasion on Northwest Side
* Metra considers shaking up fare system: Riders closer to downtown may shell out more
* Morning Spin: Mendoza says Rauner can't take criticism 'from a 5-foot-3 woman from Chicago'
* Year after unveiling, what’s latest on Tiger Woods’ Chicago golf project?

» Is It Too Soon To Pass Sexual Harassment Policies? Some Legislators Think So
» Chicago High Schools Compete Against Each Other — For Students
» State Week: Why Are People Still Dying From Legionnaires At Illinois Veterans Home?
» Top Three Challenges For Homegrown Star Taking Over Chicago Schools
» Illinois Women Tell Their #Metoo Stories
» Illinois Issues: A Personal Story
» Key Question For Democrats: To Billionaire, Or Not To Billionaire?
» Pritzker To Be First On Primary Ballot
» 3 Years, 13 Legionnaires’ Deaths At Illinois Veterans’ Home
» Protesters Disrupt Meeting, Call For Palos Trustee To Quit Over ‘Racist’ Comments

* George Will: Whirlpool has Washington in a spin cycle
* State paying Medicaid bills before interest piles up
* Andy Shaw: Is Illinois ready to attack bureaucratic bloat and save money?
* UIS Perspectives: Educating leaders in education
* Food stamps cut to tens of thousands in Illinois
* Our View: City should enlist public input in cuts
* Statehouse Insider: Holiday cheer from Rauner to Madigan
* Schoenburg: Bernie-backing Gronemeyer vs. Clinton delegate Mazzotti for Dem post
* Lawmaker's daughter gets probation in political rival attack
* Scott Reeder: Assaults should never be swept under the rug

* CIRA cancels flights due to Atlanta airport power outage
* White Christmas not likely this year
* Rick's Six: Fog early, road work, shooting, controlled burns and new contest clue
* Ameren picks route options for north expansion
* Europe topic of ISU spring seminar series
* Area Calendar 12/18/17
* Start the Week Off Right: Maintain a healthy lifestyle during the holidays
* Holiday gift (and selfie) hunt
* One hospitalized after single-car crash that knocked down power lines in Belleville
* One hospitalized after single car crash in Belleville

* Hershey buying snack maker Amplify in $1.2 billion deal
* Pakistan steps up security after IS kills 9 in church attack
* New high roller at the table, Penn buys Pinnacle for $2.8B
* New Bitcoin-based security slightly higher in debut on CME
* Trump says he isn't considering firing Mueller over emails

* High school football: Randy Hultgren lauds...
* Suburban Democrats line up to challenge Ro...
* Kendall GOP chief to challenge Kinzinger i...
* Strong early filing for Illinois attorney ...
* Letter to the editor: Hultgren should oppo...
* Tax cuts for Scrooge McDuck? Dispelling my...
* Letter: Protect our internet from fascism ...
* Efforts continue to have Warrenville Post ...
* Editorial: Roskam gets gun vote right, Hul...
* Dissident artist Ai Weiwei and US Rep. Ran...

* This RSS feed URL is deprecated...

* This RSS feed URL is deprecated...
* Duckworth: Dems Need to Unite on Spending ......

* Consciousness raising.
* Corporate tax gifts didn’t start with the current GOP bill thanks to Dem friends.
* Chicagoetry: Winter Mice
* Investigation: Emanuel's Chicago Infrastructure Trust has cost taxpayers $5 million but has contributed little, and other news
* Let’s not presume that Trump and his political ilk are beaten quite yet
* Bling for the budget- and design-conscious
* Standing on the shoulders of ancestors.
* Sketchbook.
* Whenever the fight for democracy reaches a crossroads, look south.
* Sunday, Sunday.

* Illinois Awarded Funds to Offer Advanced Training on Detecting Impaired Driving
* Illinois EPA Announces Upcoming Household Hazardous Waste Collection Events
* IEMA Highlights Emergency Preparedness for People with Access and Functional Needs in May - Ready Illinois website offers preparedness tips for people, caregivers
* First Lady Launches Illinois Family Connects
* Governor and Lt. Governor Unveil 2016 Journal of Local Government Shared Service Best Practices

* The Huawei Enjoy 7S is yet another 2:1 phone with narrow bezels and dual cameras
* Pixel 2 and 2 XL get upfront Google Store discounts, Target gift cards and bill credits
* Bloomberg report lends further credence to Samsung Galaxy S9 February announcement
* There’s still time to bring the Oculus Rift home for the holidays at a discounted price
* Purported Sony H8216 specs could foreshadow Xperia XZ1 sequel with Snapdragon 845
* Samsung Market Share Slipping and the Post Net Neutrality World | #PNWeekly 283
* HQ Smashed Its All-Time Player Record Tonight as iPhone Trivia Show Continues to Surge in Popularity

* Podcast: Much ado about Manny Machado
* Lull in Manny Machado rumors, but plates shift underneath
* Sporcle Saturday: The richest free agent deals in White Sox history
* Former White Sox players return to rep team
* White Sox news that doesn’t involve Manny Machado
* Former White Sox players return to rep team
* The cracks in the White Sox-Manny Machado rumors

Main Menu
Pundit rankings
Subscriber Content
Blagojevich Trial
Updated Posts

December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004

Blog*Spot Archives
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005


RSS Feed 2.0
Comments RSS 2.0

Hosted by MCS SUBSCRIBE to Capitol Fax Advertise Here Mobile Version Contact Rich Miller