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Yet another twist in legislative salary case

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Illinois

* 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…

Cohen’s decision to back House Speaker Michael Madigan (D-Chicago) and Senate President John Cullerton (D-Chicago), who opposed Quinn’s move, revolved around constitutional language that prohibits legislators’ salaries from “changes” during their existing terms in office.

But on Wednesday, Quinn argued that Cohen ignored the governor’s constitutional right to veto appropriations bills and statements by delegates to the state’s 1970 constitutional convention that intended for the term “changes” to apply to increases in pay.

Quinn pointed to at least seven instances in which legislators voted to reduce their pay, dating back to the 92nd session of the General Assembly between 2001 and 2002.

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.”

posted by Rich Miller
Thursday, Oct 3, 13 @ 10:23 am

Comments

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?

Comment by Thomas Thursday, Oct 3, 13 @ 10:33 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.

Comment by D P Gumby Thursday, Oct 3, 13 @ 10:37 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.

Comment by Norseman Thursday, Oct 3, 13 @ 10:38 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.

Comment by Norseman 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.

Comment by Michelle Flaherty Thursday, Oct 3, 13 @ 10:42 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.

Comment by walkinfool Thursday, Oct 3, 13 @ 10:45 am
Michelle, you’re priceless.

Comment by Norseman Thursday, Oct 3, 13 @ 10:46 am
==Everything’s constitutional until a court says it isn’t.==

Exactly.

Comment by Wensicia Thursday, Oct 3, 13 @ 10:48 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.

Comment by Mokenavince Thursday, Oct 3, 13 @ 10:49 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?

Comment by dupage dan Thursday, Oct 3, 13 @ 10:51 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.”

Comment by Oswego Willy Thursday, Oct 3, 13 @ 10:54 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).

Comment by Just Observing 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.

Comment by wordslinger Thursday, Oct 3, 13 @ 10:58 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.

Comment by humm Thursday, Oct 3, 13 @ 11:07 am
Dup Dan,
People are presumed innocent until proven guilty and laws are presumed constutional until ruled otherwise.

Comment by Michelle Flaherty Thursday, Oct 3, 13 @ 11:08 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.

Comment by blahblahblah Thursday, Oct 3, 13 @ 11:09 am
Quinn needs to stop. This isn’t populist, this isn’t even logical.

Comment by otoh Thursday, Oct 3, 13 @ 11:17 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 …

Comment by Oswego Willy Thursday, Oct 3, 13 @ 11:26 am
Michelle,

On point AND concise. I need to hire you to edit my comments … LOL

Comment by RNUG Thursday, Oct 3, 13 @ 11:28 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.

Comment by Norseman Thursday, Oct 3, 13 @ 11:30 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.

Comment by Norseman Thursday, Oct 3, 13 @ 11:44 am
He was for the constitution before he was against it.

Comment by siriusly Thursday, Oct 3, 13 @ 11:50 am
=== “So what? We passed unconstitutional bills. So sue us.” ===

Pride before the fall?

Comment by Formerly Known As... Thursday, Oct 3, 13 @ 11:59 am
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 …

Comment by RNUG Thursday, Oct 3, 13 @ 12:18 pm
It wouldn’t be Illinois without our biannual Constitutional Crisis.

Comment by Just Me Thursday, Oct 3, 13 @ 12:22 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.

Comment by Mokenavince Thursday, Oct 3, 13 @ 12:32 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.

Comment by Norseman Thursday, Oct 3, 13 @ 12:43 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.

Comment by Norseman Thursday, Oct 3, 13 @ 12:48 pm
= It wouldn’t be Illinois without our biannual Constitutional Crisis. =

I want that on a tshirt!

Comment by blahblahblah Thursday, Oct 3, 13 @ 2:50 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?

Comment by unbelievable Thursday, Oct 3, 13 @ 4:35 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…

Comment by Just The Way It Is One Thursday, Oct 3, 13 @ 9:41 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).”

Comment by Norseman Thursday, Oct 3, 13 @ 10:44 pm