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IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT COURT SANGAMON COUNTY

SPRINGFIELD RIGHT TO LIFE; LAKE COUNTY RIGHT TO LIFE COMMITTEE, INC.; KNOX COUNTY RIGHT TO LIFE, NFP; HENRY COUNTY RIGHT TO LIFE, INC.; CLINTON COUNTY CITIZENS FOR LIFE; PRO-LIFE ACTION LEAGUE, INC.; DIOCESE OF SPRINGFIELD-IN-ILLINOIS; ILLINOIS RIGHT TO LIFE ACTION; ILLINOIS FEDERATION FOR RIGHT TO LIFE, on behalf of their Illinois taxpayer members, and REP. BARBARA WHEELER; SEN. DAN MCCONCHIE; REP. MARK BATINICK; SEN. KYLE MCCARTER; REP. STEVE REICK; SEN. PAUL SCHIMPF; REP. KEITH WHEELER; and SEN. DALE FOWLER, as Illinois taxpayers, Petitioners, v. FELICIA NORWOOD, Director of the Department of Healthcare and Family Services; MICHAEL HOFFMAN, Acting Director of the Department of Central Management Services; MICHAEL FRERICHS, Treasurer of the State of Illinois; SUSANA MENDOZA, Comptroller of the State of Illinois, Respondents.

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Case No. 2017-MR-1032 Hon. Jennifer M. Ascher, Judge Presiding

COMBINED MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

AND IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

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INTRODUCTION

Plaintiffs present two clear, simple claims to this Court, related to newly-enacted House

Bill 40 (“HB 40”). First, HB 40 cannot be implemented, at all, because the General Assembly

has neither appropriated funds to pay for HB 40 nor made any estimate of revenues that could

support such an appropriation, both of which are required under the Illinois Constitution. Second,

HB 40 cannot be effective until June 1, 2018, as it did not pass the Illinois Senate, and both

houses of the General Assembly, until September 25, 2017, well after the May 31 cut-off

imposed by the Illinois Constitution on the General Assembly. Because Defendants believe HB

40 to be fully funded and effective January 1, Plaintiffs both respond to Defendants’ Motion to

Dismiss and seek immediate temporary injunctive relief against Defendants, to preserve the

status quo pending a final decision on the merits.

FACTUAL BACKGROUND

I. Legislative History of HB 40.

HB 40 reverses the prohibition on funding of elective abortions1 by the State’s Medicaid

and employee health insurance programs and, further, mandates coverage by Medicaid for all

“reproductive health care that is otherwise legal.”

HB 40 received a simple majority vote in the Illinois House on April 25, 2017, passed out

of the House, and arrived in the Senate on April 26. HB 40 received a simple majority vote in the

Illinois Senate on May 10th, but on that same day, Senator Don Harmon, who voted in favor of

HB 40, filed a motion to reconsider the vote.

On September 25, 2017, Sen. Harmon withdrew the motion to reconsider. HB 40 passed

1 “Elective abortions” as used herein means abortions performed for reasons other than (1) to preserve the life of the mother or (2) in cases where the pregnancy results from an act of rape or incest.

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out of the Senate that day and was sent to the Governor. The Governor signed HB 40 on

September 28, 2017.

II. Projected Economic Impact of HB 40.

Illinois’s abortion providers perform approximately 40,000 abortions per year, nearly all

of which are paid for by sources other than state taxpayers. See Abortion Statistics, Ill. Dep’t of

Public Health, http://www.dph.illinois.gov/data-statistics/vital-statistics/abortion-statistics.

Pregnant women with incomes up to 213% of Federal Poverty Level are presumptively eligible

for Medicaid in Illinois, through the state’s “Moms & Babies” program.2 Approximately 75% of

pregnant women obtaining abortions have an income below 200% of Federal Poverty Level,

according to a 2014 report from the Guttmacher Institute, the former research arm of Planned

Parenthood.3 And that same report indicates that states with public funding of abortions pay for

an average of 51% of abortions in those states. Whether using the 51% or 75% average, under

HB 40, approximately 20,000 to 30,000 of the state’s annual 40,000 abortions would become

eligible to be paid for by Medicaid. See Declaration of Professor Michael New.

According to data from the Illinois Department of Healthcare and Family Services, the

state’s average cost per abortion over the past ten years is $727 but over the past five years is

$1063. Id., ¶ 13, Exh. B. The national average is $451 per abortion. Id., ¶ 12. The range of

possible costs for the new abortions mandated by HB 40 is anywhere from nearly $10 million to

2 Illinois considers a pregnant woman’s unborn child to be a person for presumptive eligibility determination under Medicaid, such that a pregnant woman has a family size of at least 2 people. See Ill. Dep’t of Human Services, WG 06-10-05: Income Guidelines, http://www.dhs.state.il.us/page.aspx?item=14091. 3 Jenna Jerman et al., Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, New York: Guttmacher Institute, 2016, https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014.

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upwards of $33.5 million. Id., ¶ 15. This is without including any of the other new procedures the

bill proposes to fund. Moreover, because the federal government does not recognize elective

abortion as a reimbursable medical procedure, none of the State’s new expense for elective

abortions will be eligible for the standard 50% Medicaid match from the federal government.

Illinois taxpayers will assume the entirety of the expense for HB 40’s new reimbursements.

LEGAL STANDARDS

This filing is both a Memorandum in Support of Plaintiffs’ Motion for Temporary

Restraining Order and Preliminary Injunction and a Response to Defendants’ Motion to Dismiss.

As described below, both Motions require this Court to consider the merits of Plaintiffs’ claims,

which are more than sufficient to defeat a motion to dismiss and warrant a preliminary

injunction.

I. Motion for Temporary Restraining Order and Preliminary Injunction.

For a preliminary injunction, Plaintiffs must demonstrate: (1) one or more clearly

ascertained rights that are in need of immediate protection; (2) irreparable injury in the absence

of injunctive relief; (3) lack of any adequate remedy at law; and (4) a likelihood of success on the

merits. See Mohanty v. St. John Heart Clinic, S.C., 225 Ill.2d 52, 62 (2006); County of DuPage v.

Gavrilos, 359 Ill.App.3d 1077, 1089 (2d Dist. 2007).

“Because a preliminary injunction is designed to preserve the status quo pending a

decision on the merits, the plaintiff need not carry the same burden of proof that is required to

support the ultimate issue. . . . [A] plaintiff need only raise a fair question as to the existence of

the right which [it] claims and lead the court to believe that [it] will probably be entitled to the

relief requested if the proof sustains [its] allegations.” Stenstrom Petroleum Servs. Grp., Inc. v.

Mesch, 375 Ill. App. 3d 1077, 1089 (2007) (quoting LSBZ, Inc. v. Brokis, 237 Ill.App.3d 415,

425 (1992)).

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II. Motion to Dismiss.

Defendants’ Motion to Dismiss is a combined motion pursuant to 735 ILCS 5/2-619.1.

Defendants move to dismiss Count I pursuant to 735 ILCS 5/2-619(a)(9). “A section 2–619

motion to dismiss admits the sufficiency of the complaint, but asserts a defense outside the

complaint that defeats it.” Patrick Eng’g, Inc. v. City of Naperville, 2012 IL 113418, ¶ 31.

Defendants move to dismiss Count II pursuant to 735 ILCS 5/2-615, which “tests the legal

sufficiency of a complaint.” Id. “When ruling on such motions, a court must accept as true all

well-pleaded facts, as well as any reasonable inferences that may arise from them.” Id.

While the standards for a 2-615 motion and a 2-619 motion are different in theory, the

controlling issues at bar are nearly entirely legal, and the material facts are not in dispute.4

Plaintiffs respectfully contend that, if they raise the “fair question” as to their likelihood of

success on the merits required for the Motion for Temporary Restraining Order and Preliminary

Injunction, the Motion to Dismiss must necessarily be denied.

ARGUMENT I. Plaintiffs Are Likely To Succeed on The Merits of Their Claim That Implementing

HB 40 Violates the Appropriations Clause & Balanced Budget Requirement of the Illinois Constitution, art. VIII, § 2(b).

The framers of the 1970 Illinois Constitution added to the Legislative Article two

complementary provisions on the expenditure of state taxpayer funds: first, they affirmed the

exclusive power of the General Assembly to appropriate public funds; and second, they imposed

the specific constraint of a balanced budget on the General Assembly, by requiring that the

General Assembly estimate available funds and appropriate only within the bounds of that

4 While the parties dispute whether the costs of abortions under HB 40 are closer to $1.8 million, as contended by Defendants, or $10 million to $30 million or more, as Plaintiffs contend, there is no dispute that there is a non-trivial cost to the abortions mandated by HB 40.

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estimate. See Ill. Const., art. VIII, § 2(b).

HB 40 purports to provide new entitlements in the state Medicaid and employee health

insurance programs, but no new or supplemental appropriation of funds was enacted by the

General Assembly to provide the additional general revenue funds that would be required to be

expended to support that entitlement.

Fiscal Year 2018 appropriations of general revenue funds for existing services under

Medicaid and the state health insurance program were enacted on July 6, 2017. P.A. 100-21.

There is no indication that those appropriations, which cover the fiscal year from July 1, 2017 to

June 30, 2018, accounted for or included amounts to support millions in new spending on HB 40,

a bill that had not even been passed out of the Illinois Senate at that time—and was subject to a

public veto threat by the governor.

The General Assembly also did not adopt a revenue estimate, estimating funds available,

to pay for HB 40.5 Because the General Assembly has not adopted such an estimate, any putative

appropriations alleged to pay for HB 40’s services would be invalid, in violation of the Illinois

Constitution’s Balanced Budget requirement. Art. VIII, § 2(b).

And in fact, there are no funds available for HB 40, as the appropriations in SB 6 are

already approximately $1.7 billion greater than actual expected revenues. See, e.g., “Illinois

Economic and Fiscal Policy Report,” 10/12/17, Governor’s Office of Management and Budget,

https://www.illinois.gov/gov/budget/Documents/Economic%20and%20Fiscal%20Policy%20Rep

orts/FY%202017/Economic_and_%20Fiscal_%20Policy_%20Report_10.12.17.pdf.

A. Payments Pursuant To HB 40 Would Violate art. VIII, § 2(b) of the Illinois Constitution.

5 The method of adoption for that revenue estimate, a joint resolution of the House and Senate, is prescribed by the Commission on Government Forecasting and Accountability Act, 25 ILCS 155/4(a).

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Art. VIII, § 2(b) of the Illinois Constitution of 1970 (“Section 2(b)”) provides: “The

General Assembly by law shall make appropriations for all expenditures of public funds by the

State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly

to be available during that year.” Plaintiffs allege that payments pursuant to HB 40 would violate

Section 2(b) because the General Assembly made no estimate of funds available to pay for the

services contemplated by HB 40, made no appropriation of funds for the services to be provided

pursuant to HB 40, and because, in fact, there are no funds available for HB 40. (Comp., ¶35-38).

Plaintiffs allege these failures violate the constitutional requirements that the General Assembly

“shall make appropriations for all expenditures of public funds by the State” and that such

appropriations “shall not exceed the funds estimated to be available during that year.”

Defendants seek to dismiss Count I of Plaintiff’s Complaint, pursuant to Section 2-619 of

the Code of Civil Procedure, on the basis that Plaintiff’s challenge to payments pursuant to HB

40 raises “intrinsically political questions.” (Def. Memo., p. 2). Defendants maintain that three of

the criteria recognized as supporting a finding that an issue presents a nonjusticiable political

question are present in this case and, accordingly, that Count I of Plaintiffs’ Complaint should be

dismissed. (Def. Memo., pp. 9-18, citing Baker v. Carr, 369 U.S. 186 (1962)).

Defendants, however, misinterpret Baker. As the Supreme Court explained in Baker, the

political question doctrine does not foreclose a court from performing its duty to determine

whether another branch of government has failed to comply with constitutional requirements:

Much confusion results from the capacity of the “political question” label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. Baker, 369 U.S. at 210-211.

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B. The General Assembly Did Not Comply With Section 2(b) Because It Made No Revenue Estimate At All. In The Absence Of Any Estimate, There Can Be No Issue As To The Sufficiency Or Propriety Of The Non-Existent Estimate.

First, Defendants maintain that Plaintiffs’ constitutional challenge raises political questions

because, “The Court cannot resolve Count I without inquiring into how the General Assembly

determined a revenue estimate and whether, in the Court’s view, this estimate was appropriate.”

(Def. Memo., p. 11). Contrary to Defendants’ characterization, however, Plaintiffs have alleged,

and the public record confirms, there was no revenue estimate, not that there was some flaw in the

process of adopting an estimate or an inadequate estimate. (Comp., ¶¶37, 56). Defendants concede

the General Assembly did not pick any revenue estimate, noting only that it had access to several

different estimates, but that no estimate was adopted by both the Senate and the House. (See Def

Memo., pp. 6-7, 13).

In the absence of any revenue estimate adopted by the General Assembly, questions of

“how the General Assembly determined a revenue estimate” and whether the estimate was

appropriate, are not implicated. In the absence of any estimate at all, there can be no question

regarding the sufficiency of the (non-existent) estimate, or any questions regarding the process by

which the (non-existent) estimate was determined. Contrary to Defendants’ claim, Plaintiffs have

not challenged “how [the General Assembly] estimates available funds” (Def. Memo., p. 11), they

have alleged that the General Assembly failed to make any estimate at all, contrary to its admitted

constitutional duty to do so.

C. Whether “Clear Standards” Exist By Which HB 40 Revenue Estimates Or Appropriations Are To Be Evaluated Is Irrelevant Since There Were No Revenue Estimates Or Appropriations.

i. Since There Was No Revenue Estimate At All, The Sufficiency Of

Standards Governing Evaluation Of Revenue Estimates Is Irrelevant.

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Second, Defendants contend that Plaintiffs’ claim implicates political questions because

Section 2(b) fails to specify the form or timing of the General Assembly’s estimate of funds, and

otherwise fails to set forth “clear standards” as to how it must fulfill its duty to make a revenue

estimate and appropriate within that estimate. (Def. Memo., pp. 10-17). Defendants are mistaken.

According to Defendants, “there is no way for the Court to regulate the General

Assembly’s estimate of available funds. . .” (Def. Memo., p. 12). The erroneous premise of this

argument is that the General Assembly made some estimate of available funds in the first place.

As previously discussed, since the General Assembly neither adopted a revenue estimate nor

made any appropriation, the issue is not the sufficiency of the process by which the General

Assembly adopted a revenue estimate and made appropriations, or the sufficiency of its revenue

estimate and appropriations.

Significantly, Defendants concede, as they must, that Section 2(b) imposes upon the

General Assembly both a duty to estimate available funds and a duty to appropriate within that

estimate. See Def. Br., p. 11 (“Plaintiffs’ request for relief requires the Court to determine

whether the General Assembly made a revenue estimate and valid appropriations, but there are

no clear standards regarding how the General Assembly must fulfill either of these duties.”).

Accordingly, consistent with the only possible reading of Section 2(b), it is uncontested that the

constitution requires adoption by the General Assembly, in some manner, of a revenue estimate,

as well as an appropriation within that estimate. See also, Ill. Collaboration on Youth v. Dimas,

2017 IL App (1st) 162471, ¶ 40 (“both the Governor and the General Assembly are

constitutionally constrained to propose or pass budgets and appropriations that do not exceed

estimated available funds”); People ex rel. Ogilvie v. Lewis, 49 Ill. 2d 476, 490-491 (1971)

(“Section 2(b) of article VIII . . . provid[es] that the legislature must limit its annual

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appropriations each fiscal year so as not to ‘exceed funds estimated by the General Assembly to

be available during that year.”); Ill. Att’y Gen’l Op. (Unofficial) I-14-006, at 12-13, attached as

Exhibit A hereto (“The explanation disseminated to the voters contemplates, and the

Constitutional Convention debates clarify, that the General Assembly may decide its own

estimate of available funds and is not constrained by the Governor's estimate. Once the

legislature determines that estimate, it acts as ‘a ceiling within which they must appropriate.’

Accordingly, considering the explanation to voters and the delegates' comments, the intent of section

2(b) is that the legislature's appropriations authority is limited by the General Assembly’s funds

estimate.”) (citations omitted).

As alleged in the Complaint, the General Assembly failed to comply with either of these

constitutionally mandated duties by failing to perform them at all. There was no “tug and pull of

political interests” that resulted in a revenue estimate or appropriation for HB 40. In the absence

of any revenue estimate or appropriations, the General Assembly could not have fulfilled either

of the constitutional duties admittedly imposed by Section 2(b).

Although Defendants admit Section 2(b) required the General Assembly to adopt a

revenue estimate, based on a misinterpretation of 25 ILCS 155/4(a) (“COFGA Section 4(a)”),

they claim that the General Assembly was not required to adopt a (or adopt a modified) revenue

estimate by joint resolution. (Def. Memo., pp. 12-13).6 COFGA Section 4(a) provides:

On the third Wednesday in March after the session convenes, the Commission shall issue a revised and updated set of revenue figures reflecting the latest available information. The House and Senate by joint resolution shall adopt or

6 Contrary to Defendants’ claim, Plaintiffs did not “allege that the General Assembly is required to adopt COGFA’s estimated revenue report.” (Def. Memo., p. 12). The Complaint alleges, “Any fiscal Year 2018 appropriations arguably supporting HB 40’s elective abortions and other services were made without adopting the estimate of revenues required by the Illinois Constitution’s Balanced Budget requirement, Art. VIII, § 2(b), and provided in the Commission on Government Forecasting and Accountability Act, 25 ILCS 155/4(a).” (Comp., ¶56).

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modify such estimates as may be appropriate. The joint resolution shall constitute the General Assembly’s estimate, under paragraph (b) of Section 2 of Article VIII of the Constitution, of the funds estimated to be available during the next fiscal year.

Plaintiffs do not contend that the General Assembly is required to adopt, without any

modification, the COFGA revenue estimate – COFGA Section 4(a) expressly provides that the

House and Senate “by joint resolution shall adopt or modify such estimates as may be

appropriate.” [Emphasis added.] The General Assembly is, however, required to adopt an

estimate.

Defendants, however, further argue that COFGA Section 4(a) does not require the House

and Senate to “adopt or modify” a revenue estimate “by joint resolution,” claiming the word

“shall” as used in the statute is directory, not mandatory. Defendants appear to claim that the

House and Senate could somehow adopt a revenue estimate through some action other than a

joint resolution, although they fail to state what that action might be and fail to argue that the

General Assembly in fact did so.

If Defendants’ intent is to suggest that the Senate’s passage of Senate Joint Resolution 42

satisfied the requirements of COFGA Section 4(a), they are wrong. COFGA Section 4(a) refers

to action by both the House and the Senate. Moreover, the Senate acting alone could never

satisfy the General Assembly’s admitted duty under Section 2(b) to estimate funds. As previously

discussed, Section 2(b) requires, “Appropriations for a fiscal year shall not exceed funds

estimated by the General Assembly to be available during that year.” Section 2(b)’s reference to

“funds estimated by the General Assembly” requires action by both the House and the Senate.

Article IV, § 1 of the Illinois Constitution of 1970 provides that “[t]he legislative power is vested

in a General Assembly” and specifies that the “General Assembly” consists of “a Senate and a

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House of Representatives elected by the electors from 59 Legislative Districts and 118

Representative Districts.”

In any event, Defendants’ statutory interpretation argument is erroneous. They contend

the word “shall” in COFGA Section 4(a) should be interpreted as directory rather than mandatory

because the statute fails to impose a specific consequence for the failure to comply. Defendants’

argument confuses the analysis of whether the language of COFGA Section 4(a) is mandatory or

directory, with the question of whether the statute is mandatory or permissive. Defendants argue

that COFGA Section 4(a) did not require the House and Senate to adopt (or adopt a modified)

revenue estimate by joint resolution; they claim it was something they could, but were not

required to do. That argument raises the question of whether COFGA Section 4(a) is mandatory

or permissive—not whether it is mandatory or directory.

In People v. Ousley, 235 Ill.2d 299, 311 (2009), the Supreme Court again explained the

distinction between those separate issues, noting that it was revisiting the issue because

confusion persisted even following its earlier decision in People v. Robinson, 217 Ill.2d 43

(2005). The Supreme Court reiterated the distinction between those separate issues, explaining:

Whether statutory language is mandatory or directory is a separate question from whether a statute is mandatory or permissive. With regard to the mandatory-permissive question, this court in Robinson explained, “‘[T]he term “mandatory” refers to an obligatory duty which a governmental entity is required to perform, as opposed to a permissive power which a governmental entity may exercise or not as it chooses.’” In contrast, “‘the “directory” or “mandatory” designation does not refer to whether a particular statutory requirement is “permissive” or “obligatory,” but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.’” [Citations omitted throughout.]

The issue raised by Defendants is whether COFGA Section 4(a) is mandatory or

permissive; Defendants claim COFGA does not impose “clear standards” governing the House

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and Senate’s obligation to estimate revenues because, according to Defendants, the House and

Senate are not required to comply with its provisions despite the mandatory “shall” language of

the statute. Defendants are wrong.

COFGA Section 4(a) imposes an obligatory, clear duty which governmental entities (the

House and Senate) are required to perform, rather than a discretionary power which the House

and Senate “‘may exercise or not as [they] choose[].’” People v. Ousley, 235 Ill.2d at 313. In this

case, there is no reason to ascribe a different meaning to the word “shall” than that generally

ascribed to it in “the context of the mandatory-permissive dichotomy.” See Id. There is nothing

in the language of COFGA Section 4(a) which suggests it is intended to vest the House and

Senate with a permissive power they may exercise or not as they choose. This is particularly true

in view of the fact that Defendants themselves concede that Section 2(b) imposes upon the

General Assembly the duty to estimate revenues.

By contrast, the case cited by Defendants, People v. Delvillar, 235 Ill.2d 507, 516 (2009),

provides an example in which the mandatory-directory question was raised. In Delvillar, the

Appellate Court considered whether a Circuit Court’s failure to comply with a statute requiring it

to admonish a defendant, who was a United States citizen, of the (non-existent) consequences

upon his immigration status of a guilty plea entitled the defendant to withdraw his guilty plea.

The Appellate Court rejected this argument, concluding the statute at issue was directory, rather

than mandatory, because it failed to state a consequence for the failure to comply.

ii. Since There Was No Revenue Estimate At All, And No Appropriation For HB 40, The Existence Of “Clear Standards” For Determining Whether The Non-Existent Appropriations Exceeded The Non-Existent Revenue Estimate Is Irrelevant.

Defendants contend, “Without clear standards for determining the General Assembly’s

revenue estimate, it follows that the Court has no clear way of determining whether the General

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Assembly’s Fiscal Year 2018 appropriations exceeded its estimate.”7 (Def. Br., p. 14). Again,

Defendants are arguing a different case than this one—they ignore that there was no revenue

estimate in the first place. Further, since HB 40 was enacted after Fiscal Year 2018

appropriations for existing services under Medicaid and the state health insurance program were

determined, there was no appropriation for HB 40 in any amount. (Comp., ¶¶35-36); see Dimas,

¶¶ 57 (“the Comptroller may not issue payments where there are no appropriations against which

warrants may be drawn.”). Contrary to Defendants’ claim, there is no issue in this case as to “the

appropriateness of the various calculation methods” of any budgetary deficit or surplus.

iii. There Was No Appropriation For HB 40, So The Existence Of “Clear Standards” Governing The Sufficiency Of Appropriations Is Irrelevant.

In a variation of their previous arguments, Defendants contend, “The Illinois

Constitution does not provide the General Assembly with any standards for the level of

appropriations required to fund a mandate such as HB 40.” (Def. Memo, p. 15). This assertion is

inaccurate. As previously discussed, Section 2(b) requires the General Assembly to make

appropriations for all expenditures of public funds by the State, which “shall not exceed funds

estimated by the General Assembly to be available during that year.” Without the required

revenue estimate, the General Assembly could not determine the amount of any HB 40

appropriation or make a determination of whether such an appropriation covered expenditures in

connection with HB 40. The fact that someone somewhere estimated the cost of a program (that

had not even been enacted) and prior to any appropriation by the General Assembly, does not

7 However, Defendants had no difficulty positing a general revenue appropriations amount in their recitation to this Court of the Fiscal Year 2018 Budget process, (Def. Memo, pp. 5-7). Defendants specify that the General Assembly appropriated $34.39 billion in general funds, $400 million more than COGFA’s estimate of $33.99 billion available. Id.

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establish that the General Assembly has made an appropriation for that program consistent with

the requirements of Section 2(b).

Defendants also assert that Plaintiffs are questioning HFS’ management of its own

appropriations to adequately fund HB 40 (Def. Br., p. 16), apparently suggesting that, this Court

should disregard the failure to comply with Section 2(b) or COFGA on the basis that HFS has

discretion regarding how to allocate resources. HFS’ discretion does not relieve the General

Assembly of its admitted constitutional duties to estimate revenues and appropriate within that

estimate, or forgive its failures to comply with those duties. HFS’ discretion cannot overcome

that the appropriations to HFS were made prior to the enactment of HB 40, without a revenue

estimate adopted by the General Assembly, and without any new or supplemental appropriations

to pay the costs incurred in connection with HB 40.

Defendants conclude their argument with a repetition of their claims that “the decision

about which services to fund and at what level presents a discretionary decision left to the

political branches” and, accordingly, that “[t]his Court cannot inquire into the

validity of the General Assembly’s revenue estimate and appropriations without running afoul of

the political question doctrine.” (Def. Memo., pp. 16-17). Again, the factual premise of

Defendants’ argument is demonstrably wrong—the General Assembly neither made a revenue

estimate nor appropriations for HB 40.

D. A Determination Of Whether A Coordinate Branch Has Complied With Constitutional Requirements Does Not Express A “Lack Of Respect” But Is The Responsibility Of The Courts.

Defendants contend that Plaintiffs’ claims raise non-justiciable political questions

because, in independently resolving the issues raised, this Court would necessarily express a

“lack of respect” to its coordinate branch of government by “arrogating to the Court discretion

over which state programs to fund.” (Def. Br., p. 17). Defendants’ argument misstates the relief

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sought by Plaintiffs. Plaintiffs do not ask this Court to itself undertake the power or the duties

imposed upon the General Assembly by Section 2(b). Instead, Plaintiffs ask this Court, to

determine “whether a matter has in any measure been committed by the Constitution to another

branch of government, or whether the action of that branch exceeds whatever authority has been

committed,” which is the responsibility of the courts. See Baker, 369 U.S. at 210-211.

Plaintiffs’ motivation for challenging the constitutionality of payments pursuant to HB 40

(“[i]n seeking only to enjoin disbursements for the implementation of HB 40, Plaintiffs’ true

grievance appears to be with the General Assembly’s policy decision to fund certain reproductive

health care services”), or their decision to limit their challenge (“Plaintiffs are not asking the

Court to enjoin disbursements for the myriad other services funded through the Fiscal Year 2018

appropriations, including health care services other than abortion procedures covered by the

Illinois Public Aid Code”), have nothing to do with the question here: whether such payments

violate Section 2(b) and COFGA Section 4(a). (Def. Memo., p. 17).

II. Plaintiffs Are Likely To Succeed on The Merits of Their Claim That Implementing HB 40 Prior to June 1, 2018, Violates the Illinois Constitution, art. IV, § 10, and the Effective Date of Laws Act, 5 ILCS 75/2.

The Illinois Constitution provides that, “[a] bill passed after May 31 shall not become

effective prior to June 1 of the next calendar year unless the General Assembly by the vote of

three-fifths of the members elected to each house provides for an earlier effective date.” Ill.

Const., art. IV, § 10; see also Effective Date of Laws Act, 5 ILCS 75/2 (codifying the same rule).

The purpose of these provisions is to motivate legislators to complete their legislative business

by May 31, rather than allowing it to drag on into the remainder of the year. See Michael J.

Kasper, Using Article IV of the Illinois Constitution to Attack Legislation Passed by the General

Assembly, 40 LOYOLA UNIV. CHIC. L.J. 847, 864 (2009). They also aim to provide citizens

sufficient notice of a new law before it takes effect. See People ex rel. Alvarez v. Howard, 2016

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IL 120729, ¶ 22 (“The Effective Date Act helps to ensure that parties have sufficient opportunity

to conform their conduct to the law . . . .”).

HB 40 was passed after May 31, 2017, with no earlier effective date specified, and

therefore it cannot take effect prior to June 1, 2018, under Article IV, section 10 and 5 ILCS 75/2.

But Defendants nevertheless want the law to take effect on January 1, 2018. What Defendants

are attempting to do with HB 40 violates both the letter and the spirit of Article IV, Section 10

and 5 ILCS 75/2. Illinois law does not permit that sort of legislative sleight-of-hand.

A. HB 40 Passed Out Of The Senate And Onto The Governor’s Desk On September 25, 2017.

As described above, HB 40 was passed by a simple majority vote of the Illinois House on

April 25, 2017, and arrived in the Senate on April 26, where it passed by a simple majority vote

on May 10, 2017. Compl. ¶¶ 40, 41. The same day, Senator Don Harmon, who had voted in

favor of HB 40, filed a motion to reconsider the vote. Compl. ¶ 41. Senator Harmon did not

withdraw that motion to reconsider until September 25, 2017, Compl. ¶ 42, whereupon HB 40

passed out of the Senate and was sent to the Governor, who signed it on September 28, 2017,

Compl. ¶¶ 42, 42. The date of HB 40’s passage out of the Senate to the Governor’s desk was

September 25, 2017. Accordingly, the Illinois General Assembly website identifies September

25, 2017, as the date that HB 40 “Passed Both Houses.”8

B. The Governing Rules of The Illinois Senate Dictate That September 25, 2017, Is HB 40’s Passage Date.

The Illinois Senate Rules state that “[t]he rules of parliamentary practice appearing in the

2010 edition of Mason’s Manual of Legislative Procedure shall govern the Senate in all cases to

8 Bill Status, HB 40, http://www.ilga.gov/legislation/billstatus.asp? DocNum=40&GAID=14&GA=100&DocTypeID=HB&LegID=99242&SessionID=91.

18

which they are applicable, providing that they are not inconsistent with these Senate Rules.” Ill.

Sen. R. 12-2. According to Mason’s Manual, a motion to reconsider suspends all action on a

particular vote and renders the vote ineffective until the motion is resolved. See Mason’s Manual

of Leg. Proc. (“Mason’s Manual”) § 467(1) (2010); Ceresa v. City of Peru, 133 Ill. App. 2d 748,

753 (3d Dist. 1971) (a motion to reconsider made at the same session “prevented [the motion that

was the subject of the motion to reconsider] from having any legal effect”). By the rules of the

Illinois Senate, then, its vote on May 10, 2017, did not become effective until September 25,

2017, when the motion to reconsider was withdrawn.

Mason’s Manual also makes clear that a bill is not finally passed by the Senate until the

bill is out of the Senate’s possession. See Mason’s Manual § 737(5) “Passage of Bills” (“When a

house has passed a bill and it is out of that body’s possession . . . jurisdiction of the bill has been

lost and it has been finally passed.” (emphasis added)).

A bill that is subject to a motion to reconsider cannot “pass out of the possession of the

Senate until after the motion has been decided or withdrawn.” Ill. Sen. R. 7-15. A bill subject to a

motion to reconsider is thus not finally passed until after the motion is resolved. See also

Mason’s Manual § 737(6) “Passage of Bills” (“When a bill has been voted upon favorably by

both houses, but a motion to reconsider its action in passing the bill is pending in the house last

acting on the bill and the bill is still in its possession, the bill has not been finally passed by both

houses.”).

The motion to reconsider the Senate vote on HB 40 was not resolved until September 25,

2017. Under Mason’s Manual’s parliamentary rules—the rules explicitly adopted by the Illinois

Senate—HB 40 was not passed by the Senate, or “finally passed by both houses” of the General

Assembly, until September 25, 2017. Id.

19

C. Defendants’ Position Would Put the Legislature in Perennial Violation of the Illinois Constitution’s Presentation Clause.

This definition of “passed” is fully supported by the Illinois Constitution. Section 9(a) of

Article IV of the Illinois Constitution provides that “[e]very bill passed by the General Assembly

shall be presented to the Governor within 30 calendar days after its passage.” HB 40 could not

have been presented to the Governor within 30 calendar days of May 10, 2017, which

Defendants urge should be treated as the bill’s passage date. In fact, if May 10 is the date of HB

40’s “passage” for the purpose of Article IV, Section 9(a), then the Senate has repeatedly acted

unconstitutionally, by following its own rules on motions to reconsider and not sending bills to

the Governor within 30 days after they are voted on by the second house. See, e.g., Bill Status,

Senate Bill 1, (5/31/17 “Senate Concurs,” 5/31/17 “Motion Filed to Reconsider Vote,” 7/31/17

“Motion Withdrawn,” 7/31/17 “Passed Both Houses,” 7/31/17 “Sent to the Governor”),

http://www.ilga.gov/legislation/billstatus.asp?DocNum=1&GAID=14&GA=100&DocTypeID=S

B&LegID=98844&SessionID=91&SpecSess=0.

Plaintiffs concede—as their position compels them to—that the General Assembly failed

to present HB 40 to the Governor within 30 days of the date on which they claim it passed, i.e.,

May 10, 2017, but argue that that shouldn’t invalidate the bill. They correctly note that a

violation of Section 9(a)9 is subject to “judicial enforcement,” to force the sending of a passed

bill to the governor. (Def. Memo., p. 24). Their argument misses the point, however, which is

that, for purposes of Article IV, Section 9(a), the General Assembly itself manifestly did not treat

the date of the Senate’s vote (May 10) as the date of HB 40’s “passage” but rather used the date

9 Presumably, the companion requirement under Article 4, Section 8, that the Senate President and House Speaker “shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met,” would be similarly judicially enforceable. However, those officers could not sign a bill subject to a motion to reconsider, for such a bill has not met “the procedural requirements for passage.”

20

on which it actually passed out of the General Assembly (September 25).

Under Defendants’ logic, the Senate could be haled into Court every time a bill is subject

to a motion to reconsider for more than 30 days. But such action would invade the separation of

powers, striking directly at the Senate’s authority to govern itself, for “[a] motion to reconsider

rests exclusively in the discretion of a body whose action it is proposed to reconsider and no

other body or tribunal has a right to treat a reconsideration as void.” Mason’s Manual, § 460(3).

And if May 10 is not the date that HB 40 was “passed” for the purposes of Section 9(a) of

Article IV, it defies common sense and well-established principles of statutory interpretation to

claim that it is the date that HB 40 “passed” for the purposes of Article IV, Section 10—the very

next section of the same article of the Constitution. See also, 5 Record of Proceedings, Sixth

Illinois Constitutional Convention, 4106-07, 4468-70 (Constitutional Convention voting on

Sections 8, 9, and 10 of the Legislative Article as a unit on Second Reading; voting on the whole

Article as a unit on Third Reading). The Senate’s own practices with respect to motions to

reconsider, and presentation to the Governor, provide still more confirmation that HB 40

“passed” on September 25, 2017.

D. Defendants Do Not Rebut Any of the Above Authorities.

In their Motion to Dismiss, Defendants do not discredit or rebut any of the above

arguments. They do not deny that, as a practical matter, HB 40 did not pass from the Legislature

to the Governor until September 25, 2017. They do not deny that Mason’s Manual’s

parliamentary rules apply and dictate that a motion to reconsider postpones the legal effect of a

vote until after the motion has been resolved. See Def. Memo at 21.10 And they do not deny that

their proposed understanding of “passage date” would put the Senate’s practices in violation of

10 By failing to identify any Senate rule to the contrary, Plaintiffs effectively concede that Mason’s Manual’s parliamentary rules apply. See Ill. Sen. R. 12-2.

21

the Illinois Constitution’s 30-day presentation requirement. Despite their lack of counter-

authority, though, Defendants still maintain that HB 40 “‘passed’ on May 10, 2017, and that its

effective date is therefore January 1, 2018.” (Def. Memo at 19).

E. Withdrawal of the Motion to Reconsider Was the “Final Legislative Action Prior to Presentation to the Governor.”

For example, the phrasing “final legislative action” in Section 3 of the Effective Date of

Laws Act does not contradict the parliamentary rule that a bill is “finally passed” only when it is

no longer subject to a pending motion to reconsider and can therefore pass from the Legislature

to the Governor. See Def. Memo at 19. In such a case, the resolution of the motion that was

postponing the last vote from taking effect is the “final legislative action” that determines when

the bill is “passed” for the purposes of the Effective Date of Laws Act. There is nothing

contradictory, or even difficult to reconcile, about Mason’s Manual and the Effective Date of

Laws Act’s “final legislative action” requirement.

The rule established in Mason’s Manual is also perfectly consistent with the Supreme

Court of Illinois’s decision in Mulligan v. Joliet Port District, 123 Ill.2d 303 (1988), which

Defendants claim trumps Mason’s Manual, because “the Illinois Supreme Court, not the

legislature or any internal legislative rules, is the ultimate arbiter of a statute’s meaning.” (Def.

Memo at 21).11 Defendants misunderstand Mulligan. According to Defendants, the Mulligan

Court’s list of four “final legislative actions” (a) is exhaustive and (b) supersedes any other legal

authority on what a “final legislative action” could be. What Defendants neglect to acknowledge

11 Although Plaintiffs believe that the courts do have a role to play in interpreting the Effective Dates of Laws Act, Plaintiffs can’t resist pointing out the irony in Defendants’ argument that the courts cannot hold the Legislature to its constitutional and statutory requirements to balance the budget—an issue as to which accountability and transparency are of the highest importance—and, in the same brief, proclaiming the courts to be the “ultimate arbiter” of a statutory question that involves an esoteric question of legislative procedure. See Def. Memo at 21.

22

is that the Mulligan Court enumerated those four possibilities in specific reference to a bill

whose legislative history differed significantly from HB 40’s. See Mulligan, 123 Ill.2d at 313

(analyzing the history of a bill that had been subject to an amendatory veto, not a motion to

reconsider). In fact, the sentence immediately preceding the list quoted by Defendants states that

“the phrase ‘final legislative action prior to presentation to the Governor . . .’ . . . is capable of

several different constructions depending on a bill’s particular legislative history.” Id. (emphasis

added). Thus Mulligan does not purport to provide an exhaustive list of candidates for “final

legislative actions,” such that no other legislative action could qualify.

On the contrary, Mulligan provides a definition of “final legislative action prior to

presentation to the Governor” under which the withdrawal of Senator Harmon’s motion to

reconsider absolutely qualifies: “the last legislative act necessary so that [the bill] could become

law,” or the “point [at which] no further legislative action was required,” id. at 314. The

resolution of the motion to reconsider was the “last legislative act necessary so that [HB 40]

could become law.” Id.

Senator Harmon is a legislator—the Senate President Pro Tempore—taking legislative

actions. Senator Harmon filed the motion to reconsider knowing that its effect would be to delay

the passage of the bill out of the Legislature and into law; and he withdrew it when he wanted the

bill to pass out of the Legislature and become law. His reasons for doing so, whether grave or

flippant, are essentially immune from judicial review. His decisions to apply and withdraw the

motion to reconsider are not ministerial acts but fully discretionary ones. See 3 Record of

Proceedings, Sixth Illinois Constitutional Convention, 1344 (Delegate Young, discussing the 30-

day presentment requirement of Section 9(a): “We are certainly not attempting to have the

legislature mandamused to do something that was within their discretion. Here they are ordered

23

to present the bill within the thirty-day period, and it is an administrative act with no

discretion.”). Sen. Harmon’s use of the motion to reconsider is a quintessential “legislative act.”

On the facts of this and other instances where motions to reconsider have been used to

manipulate the timing of a bill’s passage out of the Legislature, it is not logically or practically

possible to claim that the withdrawal of the motion is anything but “the last legislative act

necessary so that [the bill] could become law.” Id. Defendants offer no reason or authority to the

contrary; they simply note that a motion to reconsider wasn’t mentioned in Mulligan. But

Mulligan didn’t involve a motion to reconsider, and the Court had no reason to discuss the effects

of one, so the fact that they didn’t discuss them has zero significance.

Defendants also float the theory that the removal of Senator Harmon’s motion to

reconsider “cannot be the final legislative action” because it “involved no change to HB 40’s

language.” (Def. Memo at 20). But that claim has even less legal basis than their

misinterpretation of Mulligan. Upon even modest scrutiny, the suggestion is absurd. What if the

Senate had taken up the House’s version of HB 40 and voted to pass it without amendment?

Would the Senate’s vote then not count as the “final legislative action”? Of course, it still would.

Whether the language of the bill changed cannot be the criterion for “final legislative action.”

This may be why Defendants subtly expand the argument, claiming that the “final

legislative act” must “result in a vote or change to the legislation.” (Def. Memo at 20). But they

offer no support for applying that principle here either. They cite three cases that all consider

what to use as the passage date of a bill after it has been vetoed. See Def. Memo at 21 (citing

Mulligan, 123 Ill.2d at 316; City of Springfield v. Allphin, 74 Ill.2d 117, 129 (1978); and People

v. Shumpert, 126 Ill.2d 344, 354 (1989)).12 Those cases are inapposite. The question in all of

12 Defendants do eventually note that the Illinois Constitution requires that “final passage of a

24

them is what effect the Governor’s actions—or legislative activity taken in response thereto—

after the bill’s initial passage have on the final bill’s effective passage date. The answer in those

cases turns on whether the Governor’s action occasioned any changes to the contents of the bill;

if they did, then the new bill has a new passage date; if not, then the original bill is still intact,

and so is its original passage date.

But those cases say nothing about the effects of internal legislative tactics that prevent a

bill from passing out of the General Assembly in the first place. Unlike a bill awaiting signature

or veto by the Governor, a bill that is subject to a motion to reconsider has not passed out of the

General Assembly. Votes have been taken, but the legal effect of the final vote—which would

normally be to pass the bill out of the General Assembly and onto the Governor’s desk—has

been deliberately postponed by the action of a legislator, ostensibly so that the bill can be

reconsidered, and possibly revised and voted on again, before it passes out of the Legislature. If

Sen. Harmon’s motion to reconsider had not been withdrawn, and the Senate had in fact

reconsidered HB 40, any revisions to the bill would not have resulted in a revised passage date,

as revisions after a veto would. If the bill had been reconsidered and revised before being sent to

the Governor, the date that the second chamber voted to pass the revised bill out of the

Legislature would be HB 40’s first and only passage date (assuming the absence of another

motion to reconsider or other tactic for postponing the legal effect of the vote).

In fact, had Sen. Harmon never withdrawn his motion to reconsider, this lawsuit would

not have been necessary, because HB 40 would have died with the conclusion of the 100th

bill shall be by record vote.” See Def. Memo at 22. This observation is not inconsistent with Plaintiffs’ position, which holds that Senator Harmon’s motion to reconsider prevented the Senate’s record vote from taking effect until September 25, 2017. No one disputes that passage of the bill was effected by the votes of Senators. The only dispute is over when that vote took effect.

25

General Assembly. See Ill. Const., Art. IV, § 5(a); Orr v. Edgar, 298 Ill. App. 3d 432, 443 (1st

Dist. 1998) (“On January 8, 1997, the 89th General Assembly ceased to exist pursuant to article

IV, section 5(a), of the Constitution.”).

F. Defendants’ Definition of “Passed” Also Violates Principal Purposes of Section 10, Especially To Force the General Assembly to Complete Its Work By May 31.

Given the principle purpose of Article IV, Section 10—to provide a cut-off date for the

General Assembly to conclude its work—the distinction between activity that takes place before

passage and after passage is important. In Allphin, for example, when the Court determined that

“the override of a simple nonamendatory veto does not involve any additional ‘legislative act,’”

it was careful to note that its holding would “in no way undermine[]” the intent of the

constitutional provision “as a check upon the year-round drafting of laws by the legislature.”

Allphin, 74 Ill.2d at 129-30.

Using the original passage date of a law that was later subject to a veto and override

would not undermine Article IV, Section 10’s disincentive for legislators to drag the legislative

process out beyond May 31. But the opposite is true in cases like the one at bar. A holding for the

Defendants here would enable legislators to use a motion to reconsider as a tactic for

circumventing Article IV, Section 10, by postponing actual passage of a bill indefinitely but still

claiming a technical passage date prior to May 31, thereby escaping the constitutional penalty for

their delinquency. See Pet. For Lv. To File Taxpayer Compl., at 12-15 (quoting legislative history

of Section 10, legislators and delegates describing this Section as requiring the General

Assembly “to start earlier, work harder and get out sooner;” “to end the Session at the end of

May;” to have a “termination date;” to “give[] the people of the state some freedom from the

legislature being in the position to pass laws;” to have a “cut-off date;” to “either agree by that

date, or else;” to not “open[] the door to unending sessions without any particular benefit

26

thereby, and with a great deal of loss in terms of stability to the general public, to the business

and economic community of our state,” etc.).

Defendants argue that permitting a motion to reconsider to affect a bill’s effective date

would enable a single legislator to “obstruct” the legislative process. But a motion to reconsider

is a recognized mechanism by which a single legislator can “obstruct” the legislative process by

preventing a bill from ever passing, or at least postponing its passage indefinitely. It makes no

sense for a bill’s effective date to be unaffected by a substantial delay in when it passes out of the

Legislature and becomes a law. Moreover, to divorce a bill’s effective date from the date it

actually passes out of the Legislature and onto the Governor’s desk would have absurd

consequences. Had Senator Harmon withdrawn his motion to reconsider on January 1, 2018, and

the Governor signed it the same day, Defendants would urge that HB 40 be treated just as if the

General Assembly had affirmatively assigned an immediate effective date to the measure. This

violates the spirit of notice between passage and effectiveness highlighted above, in People ex

rel. Alvarez v. Howard, 2016 IL 120729, ¶ 22. When a bill has no specified effective date,

legislators voting on the measure know that there will be at least seven months (May 31 to

December 31) between final passage and the effective date. Defendants’ definition of “passage”

goes against the intent (or at least possible intent) of members of the General Assembly who may

craft a measure without specifying an effective date, so as to ensure the public receives a

substantial notice period prior to effectiveness.

III. Plaintiffs Have Clearly Ascertainable Rights in Need of Protection.

Plaintiffs have clearly ascertainable rights in need of judicial protection. Plaintiffs are

Illinois taxpayers or are representing their members who are Illinois taxpayers across the state.

“It has long been the rule in Illinois that . . . taxpayers have a right to enjoin the misuse of public

funds.” Barco Mfg. Co. v. Wright, 10 Ill.2d 157, 160 (1956); see also 735 ILCS 5/11-301

27

(permitting taxpayers to bring suit to “restrain and enjoin the disbursement of public funds by

any officer or officers of the State government”). Public funds are the taxpayers’ money, and

taxpayers are liable to replenish the treasury when public funds are depleted. Barco Mfg. Co., 10

Ill.2d at 160. When public funds are misused, taxpayers are injured. Id.; see also Jenner v.

Illinois Dep’t of Commerce & Econ. Opportunity, 2016 IL App (4th) 150522, ¶ 26, 59 (4th Dist.

2017) (“[B]y asserting a threatened misuse of public funds . . . the taxpaying plaintiff alleges a

threatened distinct and palpable injury to a legally cognizable interest.”); Martini v. Nestch, 272

Ill. App. 3d 693, 695-97 (1st Dist. 1995) (taxpayer had standing to challenge provision of

abortions at Cook County Hospital).

Plaintiffs have alleged specific and measurable monetary harms to the state treasury in

the tens of millions of dollars, for elective abortions and other procedures that will be reimbursed

under HB 40. Exh. A, ¶¶ 22-27. But Plaintiffs would have standing as taxpayers whether the

amount of misused funds is “great or small.” Snow v. Dixon, 66 Ill. 2d 443, 450 (1977) (quoting

Krebs v. Thompson, 387 Ill. 471, 475-76 (1944)). Taxpayers may also sue to stop the use of state

funds to administer an illegal program, even if the total cost of the program is alleged to be net

positive to the state government. Id. at 450-51. There is no question, then, that as Illinois

taxpayers, Plaintiffs have a right to sue to prevent public funds from being misused.

IV. Absent Injunctive Relief, Plaintiffs And All Other Illinois Taxpayers Will Suffer Irreparable Harm.

In their Motion to Dismiss, Defendants admit they intend to begin implementing HB 40

and thereafter reimbursing for its elective abortions and other new procedures on January 1,

2018. See Def. Memo at 2-3, 6.

Unless this Court enjoins and restrains Defendants from disbursing public funds of the

State of Illinois, Plaintiffs will suffer immediate and irreparable injury, in that (a) FELICIA

28

NORWOOD, Director of the Department of Healthcare and Family Services, will begin or

continue to disburse State monies in preparation for the Illinois Medicaid and related programs to

begin expending state tax dollars for elective abortions and other procedures that were previously

unfunded under the Medicaid and related programs and are newly allowed or required pursuant

to HB 40 and, after January 1, 2018, will disburse State monies to administer and pay for those

elective abortions and other procedures; (b) MICHAEL HOFFMAN, Acting Director of the

Department of Central Management Services, will disburse State monies in preparation for the

Illinois state employees’ health insurance plan and related programs to begin expending state tax

dollars for elective abortions and other procedures that were previously unfunded under the

Illinois Medicaid and related programs and are newly allowed or required pursuant to HB 40

and, after January 1, 2018, will disburse State monies to administer and pay for those elective

abortions and other procedures; (c) SUSANA MENDOZA, State Comptroller, upon determining

that public funds are due any person, will be required by 15 ILCS 405/10.01 to direct MICHAEL

FRERICHS, State Treasurer, to pay the amount due; and (d) such disbursements of large sums of

money will be illegal and in violation of the Constitution and laws of the State of Illinois.

V. Plaintiffs Have No Adequate Remedy at Law.

Plaintiffs have no adequate remedy at law. The Supreme Court of Illinois “has always

recognized . . . and has uniformly held that the taxpayers are, in equity, the owners of the

property of a municipality, and whenever public officials threaten to pay out public funds for a

purpose unauthorized by law or misappropriate such funds, equity will assume jurisdiction to

prevent the unauthorized act or to redress the wrong, and this is because the right and interest are

equitable in their nature, and are not recognized by courts of law.” Jones v. O’Connell, 266 Ill.

443, 447 (1915). Taxpayers only have the ability to stop the flow of money out of the treasury,

not to recover it once sent. 735 ILCS 5/11-301, 11-303.

29

CONCLUSION

For the foregoing reasons, this Court should deny Defendants’ Motion to Dismiss and

grant Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction.

Respectfully submitted,

/s/Peter Breen One of the attorneys for Plaintiffs

Peter Breen Thomas Brejcha Thomas Olp Thomas More Society A public interest law firm 19 S. LaSalle, Ste. 603 Chicago, Illinois 60603 (312) 782-1680 docketing@thomasmoresociety.org pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org tolp@thomasmoresociety.org Counsel for Plaintiffs

Dawn D. Behnke Duane Young LaBarre, Young & Behnke 1300 S 8th St, Ste 2 Springfield, IL 62703 (217) 544-8500 rachel@lyblaw.com Counsel for Plaintiffs Bradley E. Huff Graham & Graham, Ltd. 1201 S 8th St Springfield, IL 62703 (217) 523-4569 Counsel for Plaintiff Diocese of Springfield-in-Illinois

OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS

Lisa Madigan ATTORNEY GENERAL

I - 14-006

APPROPRIATIONS: Durational Requirements of State Budget; Legislature's Appropriation Authority

The Honorable Jim Durkin State Representative, 82°d District House Republican Leader 316 State House Springfield, Illinois 62706

The Honorable Ed Sullivan State Representative, 51 st District 314 State House Springfield, Illinois 62706

May 27, 2014

The Honorable Dwight Kay State Representative, 1 l 21h District 230-N Stratton Building Springfield, Illinois 62706

Dear Leader Durkin, Representative Sullivan, and Representative Kay:

I have your letters raising questions concerning the requirements of a State budget passed by the General Assembly. Specifically, we have received Representative Sullivan's February 4, 2014, letter "requesting an Attorney General opinion on the durational requirements of a State budget passed by the General Assembly." We also have received your May 13, 15, and 19, 2014, letters inquiring whether it is a violation of article VIII, section 2(b ), of the Illinois Constitution of 1970 for appropriations of public funds in a State budget to exceed the General Assembly's estimate of funds available for that fiscal year.

500 South Second Street, Spnngneld, lllm01s 62706 • (217) 782-1090 • TIY: (877) 844-5461 • Fax: (217) 782-7046 100 West Randolph Street, Chicago, lllinois 60601 • (312) 814-3000 • TfY: (800) 964-3013 • Fax: (312) 814-3806

601 South University Avenue, Suite 102, Carbondale, Illmo1s 62901 • (618) 529-6400 • TIY: (877) 675-9339 • Fax: (618) 529-6416 ·~-

The Honorable Jim Durkin The Honorable Ed Sullivan The. Honorable Dwight Kay - 2

ANALYSIS

Article VIII, section 2, of the Illinois Constitution of 1970 addresses State finances and provides:

(a) The Governor shall prepare and submit to the General Assembly, at a time prescribed by law, a State budget for the ensuing fiscal year. The budget shall set forth the estimated balance of funds available for appropriation at the beginning of the fiscal year, the estimated receipts, and a plan for expenditures and obligations during the fiscal year of every department, authority, public corporation and quasi-public corporation of the State, every State college and university, and every other public agency created by the State, but not of units of local government or school districts. The budget shall also set forth the indebtedness and contingent liabilities of the State and such other information as may be required by law. Proposed expenditures shall not exceed funds estimated to be available for the fiscal year as shown in the budget.

(b) The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed fimds estimated by the General Assembly to be available during that year.

As the resolution of your questions turns on the meaning of constitutional language, our analysis follows the general principles of constitutional interpretation. The meaning of a constitutional provision is best determined by referring to the common understanding of the words used. League of Women Voters v, County of Peoria, 121Ill.2d 236, 243 (1987); Kalodimos v. Village ofMorton Grove, 103 Ill. 2d 483, 492-93 (1984). Where the language of a constitutional provision is unambiguous, it will be given: effect as written. Baker v. Miller, 159 Ill. 2d 249, 257 (1994). However, if after reviewing the language of a provision doubt remains as to its meaning, it is appropriate to consult the official documents related to the adoption of the Constitution. "Although the constitutional debates may often be helpful in understanding the meaning of doubtful constitutional provisions, the true inquiry concerns the understanding of its provisions by the voters who, by their vote, have given life to the product of the convention." Client Follow-Up Co. v. Hynes, 75 Ill. 2d 208, 222 (1979): Accordingly, our analysis looks first to the language of the Constitution and, if ambiguous, then turns to the

The Honorable Jim Durkin The Honorable Ed Sullivan The Honorable Dwight Kay - 3

official information disseminated to the voters, as well as the comments of the Constitutional Convention's delegates.

Durational Requirements of a State Budget

The Governor's Recommended State Budget

Article VIII, section 2(a), plainly requires that the Governor "prepare and submit to the General Assembly*** a State budget/or the ensuingfiscal year." (Emphasis added.) Ill. Const. 1970, art. VIII, §2( a); see generally 15 ILCS 20/50-1 et seq. (West 2012). In anticipation of their vote to adopt the Constitution, voters received the text of the proposed Constitution, the Address to the People, which is an article by article introduction of the Constitution, and a section by section explanation of the Constitution. The Address to the People provides:

The Finance Article. This is a totally new Article which has no counterpart in the present Constitution. It is concerned with better management of the taxpayer's money. It declares financial records of State and local governments to be open to the public. It provides for a balanced executive budget, to be prepared eac~ year by the Governor, and to extend to all the financial affairs of the State. 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2671, 2675.

Further, the section by section explanation provided to voters states:

Section 2 provides that every year the Governor must prepare and send to the General Assembly a budget covering all state agencies. This budget must show the revenue the State expects to receive from all sources and the money the State intends to spend for all purposes in the coming fiscal year. The budget must be balanced. 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2667, 2732-33.

The Committee on Revenue and Finance proposed the elimination of various constitutional provisions addressing fiscal procedures that appeared in the executive and legislative articles of the Illin_pis Constitution of 1870 and the creation of a separate finance article in the Illinois Constitution of 1970. In support of its proposed finance article, the Committee provided the delegates with an explanatory report. The language found in article

The Honorable Jim Durkin The Honorable Ed Sullivan The Honorable Dwight Kay - 4

VIII, section 2(a), is substantially similar to that of section 3 of the Committee's draft. The explanation accompanying the Committee's draft provides:

The first sentence firmly establishes the Governor's· authority and responsibility for preparing and submitting to the General Assembly a comprehensive state budget. It also establishes annual budgeting and empowers the General Assembly to fix the time of the budget submission. 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2007, 2017-18.

Further, the debates of the Constitutional Convention indicate that the delegates understood section 2(a) to require an annual budget, as evidenced in the following colloquy between · Delegate Netsch of the Committee on Revenue and Finance, and Delegate Gertz:

MR. GERTZ: Mrs. Netsch, does this section in effect, mandate an annual session of the General Assembly, at least for fiscal purposes? ·

MRS. NETSCH: It does contemplate annual budgeting, yes. 2 Record of Proceedings, Sixth Illinois Constitutional Convention 880.

In two other instances, Delegate Netsch described section 2(a) as providing for a budget for "the following fiscal year[.]" Remarks of Delegate Netsch, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 877, 880. Delegate Netsch also described the budget as "the governor's plan for how the state should expend its available revenue during the next fiscal year[.]" Remarks of Delegate Netsch, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 878.

Given the language in article VIII, section 2(a), it was clearly the framers' intent to require the Governor to submit annually to the General Assembly a recommended State budget

· outlining a plan for expenditures and obligations for the following fiscal year.

The General Assembly's Appropriations

Turning to whether the General Assembly may appropriate for a period that encompasses less than a full fiscal year, article VIII, section 2(b ), of the Constitution states that "[t]he General Assembly by law shall make appropriations for all expenditures of public funds by

The Honorable Jim Durkin The Honorable Ed Sullivan The Honorable Dwight Kay - 5

the State." Ill. Const. 1970, art. VIII, §2(b). The constitutional language does not expressly address whether appropriations must cover expenditures for a full fiscal year. Pursuant to statute, all appropriations recommended by the Governor in the State budget are to be incorporated into appropriation bills for the General Assembly's consideration. 30 ILCS 105/13 .4 (West 2012). Additionally, the provisions of the State Budget Law (15 ILCS 20/50-1 et seq. (West 2012)) contemplate appropriations for a full fiscal year. Consistent with those statutory directives and based on the fact that.the Governor's budget recommends appropriations for a full fiscal year, most appropriations are annual in nature. The question remains, however, whether the General Assembly must appropriate for a full fiscal year.

In recommending the creation of a finance article, the Committee on Revenue and Finance explained in its report to the delegates:

The Finance Article contains the minimum restrictions necessary to insure sound management and the flexibility necessary to meet future economic developments. It assigns the responsibilities for fiscal management, to the extent deemed necessary, among the several agencies of government. * * * At the same time, it is flexible enough to permit government to utilize the best techniques for budgeting and managing public funds. 7 Record of Proceedings, ~ix th Illinois Constitutional Convention 2008.

The Report of the Committee on Revenue and Finance notes:

L__ ___ - -------

The present constitution contains several restrictions on the appropriation process. Some of these are unnecessary. Others have impeded efforts to create a good system of fiscal controls.

* * *

Article IV, Section 18, of the present constitution contains several provisions the Committee considers obsolete and has eliminated:

* * *

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(3) It states that appropriations shall "lapse" at the end of the first fiscal quarter following the adjournment of the "next regular session of the General Assembly," The requirement that appropriations lapse at the end of "such fiscal quarter" has been implemented by statute to provide that the power to incur obligations lapses on June 30 of the biennium, but authority to pay continues until the end of the next fiscal quarter (September 30). This prevents continuing appropriations, People ex rel. Millner v. Russel, 311 Ill. 96 (1924), and prohibits payments after the end of the three month lapse period, People ex rel. Polen v. Hoehler, 405 Ill. 322 (1950). * * *

* * *

The lapse period prohibits the modem practice of making "no year" appropriations[1l for capital projects; and it has resulted in the practice of reappropriating unexpended portions of capital appropriations, thus inflating the budget. ·

Modem fiscal control procedures make it possible to maintain adequate records even on a "no year" appropriation basis. The Committee believes that since the legislature is charged with establishing financial controls, it should be free to determine the length of time appropriations are available for both obligation and expenditure purposes.

* * *

The Committee's proposal is not designed to require "no year" appropriations. Rather it is designed to permit the legislature to adopt that device or others which may develop over the years. (Emphasis added.) 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2023-28.

1The tenn "no year" appropriations is used in the debates of the Constitutional Convention to refer to those instances where the legislature appropriates a sum of money in a given fiscal year, usually for a capital project, but the unexpended balance does not lapse at the end of that fiscal year and is not required to.be reappropriated by the legislature. Rather, the unexpended sum remains available for expenditure as originally authorized until exhausted. 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2027-30.

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The transcripts of the_ delegates' debates are also instructive regarding the intent behind the language of section 2(b):

MR. S. JOHNSON: * * * Section 4 is the distillation of a number of provisions that now appear in the constitution.

* * *

We have simply stated in this section two things: (1) the allocation of appropriation power to the General Assembly and (2) the requirement that the General Assembly not appropriate more money than they estimate to have available during the year.

Both of these seem to state the obvious. What we have not included are a number of provisions in the present constitution which I will just run down briefly[.] * * *

* * *

Article IV, section 18 [of the Illinois Constitution of 1870], provides a number of provisions. First it provides the length of time that the General Assembly shall appropriate. Originally the requirement was that it appropriateci - that it could appropriate money for the next session plus three months. Now that was put in because at the time the General Assembly was assumed to adjourn on the first of April. Since they now adjourn at the end of June and may go to continuous sessions, we believe that the length of time appropriations should be available both for obllgation and expenditure purposes should be left to the General Assembly. (Emphasis added.) Remarks of Delegate S. Johnson, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 883-84.

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Based on the foregoing, it is clear that the General Assembly may authorize the appropriation and the expenditure of funds through methods other than annual appropriations.2

Although the records of the Constitutional Convention make clear that an annual appropriation is not necessary, they do not specifically address appropriations of less than a full fiscal year. However, "[t]he constitution operates as a limitation upon the General Assembly's sweeping authority, not as any grant of power [citation]; thus the General Assembly is free to enact any legislation that the constitution does not expressly prohibit[.]" Afaddu.-r: v. Blagojevich, 233 Ill. 2d 508, 522 (2009). As a result, because section 2(b) of the Constitution was intended to leave the choice of methods of appropriations to the General Assembly, and the Constitution does not otherwise discuss appropriations for less than a full fiscal year, the General Assembly generally may employ a method of appropriation for less than a full fiscal year.3 In fact, the General Assembly has done this in a number of instances. See, e.g., 15 ILCS 20/50-5 (West 2012), as amended by Public Act 98-626, effective February 5, 2014 ("[a]ppropriations may be adjusted during the fiscal year by means of one or more supplemen.tal appropriation bills if any State agency either fails to meet or exceeds the goals set forth in Section 50-25 of this Law"); 30 ILCS 105/25(a) (West 2012), as amended by Public Acts 98-008, effective May 3, 2013; 98-024, effective June 19, 2013; 98-215, effective August 9, 2013; 98-463, effectiye August 16, 2013 ("[a] deficiency or emergency appropriation shall be available for expenditure only through June

2See Graham l'. Illinois State Toll Highway Authority. 182 Ill. 2d 287. 291 and 307 (1998) (in approving the expenditure of moneys held in a special fund created pursuant to the Toll Highway Act (605 ILCS 10/24, 25 ( 1996 )) that were to "be considered 'always appropriated' for the purposes of such disbursements[,]" the court stated that "section 2(b) was not intended to prohibit the legislature from authorizing spending of certain funds through methods other than the annual appropriations process"); People ex rel. Ogilvie v. Lewis. 49 Ill. 2d 476. 489 (1971) (approving of the provisions of the Transportation Bond Act, which provided that ifthe General Assembly failed to make an appropriation for the payment of.bonds as required by the Act, then the Act itself would constitute an irrevocable and continuing appropriation of all amounts necessary for that purpose and noting that "[u]nlike the 1870 constitution which specifically prohibited appropriations beyond a specified period [citations], the 1970 constitution contains no express provision limiting the length of time for which legislative appropriations may be made"); 1991 Ill. Att'y Gen. Op. 148, 153 (concluding that an agreement to purchase land by contract for deed may be undertaken with a continuing appropriation because while "[m]ost appropriations are annual in character, covering expenditures of a fiscal year. * * * subsection 2(b) of article VIII of the Illinois Constitution of 1970 was intended to leave the choice of methods ofappropriation to the General Assembly"); 1977 Ill. Att'y Gen. Op. 99, 102 (concluding that the State's proposed deferred compensation plan does not require an annual appropriation because "the General Assembly may fulfill its duty of appropriation with a continuing rather than an annual appropriation should it elect to do so").

3We should note that there are instances in which the General Assembly has constrained its ability to appropriate for less than a full fiscal year by enacting an express statutory provision requiring an annual appropriation. See, e.g., 20 ILCS 405/405-130 (West 2012) <"[t]he General Assembly shall make an annual appropriation to the [State Government Suggestion Award] Board for payment of awards and the expenses of the Board").

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30 of the year when the Act making that appropriation is enacted unless that Act otherwise provides"); Public Act 95-011, effective July 2, 2007, repealed by its own terms on August 1, 2007, superseded by Public Act 95-348, effective August 23, 2007, and October 11, 2007 (during a budget impasse in 2007, the General Assembly enacted appropriations which were effective for only thirty days); see also 30 ILCS 18611-1 et seq. (West 2012) (Emergency Budget Implementation Act of Fiscal Year 201 O); 30 ILCS 187 /1-10 (West 2010) (Emergency Budget Act of Fiscal Year 2011); see also Ill. Att'y Gen. Op. No. 13-002, issued December 23, 2013 (the General Assembly has enacted appropriations for a full fiscal year but authorized the Governor to set aside contingency reserves from the amounts appr~priated).

provides:

The Legislature's Appropriation Authority

As noted above, article VIII, section 2(b), of the Illinois Constitution of 1970

(b) The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year. (Emphasis added.)

The making of an appropriation is a legislative function, and the General Assembly generally possesses plenary or absolute power over appropriations. See generally 1978 Ill. Att'y Gen. Op. 140; see also 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2023; Perkins v. Quinn, 2012 IL App (1st) 113165, ~21, 975 N.E.2d 698 (2012), citing American Federation of State, County & Municipal Employees v. Netsch, 216 Ill. App. 3d 566, 567 (1991). An "appropriation" is "'the setting apart from public revenue a certain sum of money for a specific object."' American Federation of State, County & }.tfunicipal Employees v. Netsch, 216 Ill. App. 3d 566, quoting Illinois Municipal Retirement Fund v. City of Barry, 52 Ill. App. 3d 644, 646 (1977). While the Address to the People is silent with regard to the General Assembly's appropriation authority, the explanation disseminated to the voters states:

Section 2 provides that every year the Governor must prepare and send to the General Assembly a budget covering all state agencies. This budget must show the revenue the State expects to receive from all sources and the money the State intends to spend for all purposes in the coming fiscal year. The budget must be balanced. Only the General Assembly has the power to decide how state funds are to be spent. The General Assembly

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cannot authorize spending more money in any fiscal year than it expects to receive from all sources. (Emphasis added.) 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2667, 2732-33.

Further, the Report of the Committee on Revenue and Finance contains.the following explanation of the language found in section 4 of its proposal, which is substantially similar to the language in section 2(b):

Section 3 provides for an executive budget. The first sentence in Section 4 makes it clear that responsibility then shifts to the legislature: appropriation is a legislative function.

The second sentence reinforces the idea of a balanced budget. (Emphasis added.) 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2023.

The Report of the Committee on Revenue and Finance further indicates that the constitutional language was intended to provide the General Assembly the opportunity to consider the Governor's budget proposals and adjust them accordingly:

The output of this system of fiscal management culminates in the budget, which is the governor's fiscal plan for the state.

In the appropriation process, however, the legislature retains the ultimate power to deal with the governor's proposals. It adjusts the governor's budget in accord with the tug and pull of political, sectional and spe(ial interests. (Emphasis added.) 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2015.

Indeed, the Committee rejected proposals that would have limited the General Assembly's ability to consider appropriations bills:

Several of the new state constitutions have attempted to insure that the legislature consider the budget as a whole before considering other appropriation bills. This has been done by placing various limitations upon the legislature's freedom to consider appropriations. Proposals of this sort were rejected by the

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Committee as undesirable restrictions upon the legislature. 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2022.

As discussed earlier, the transcripts of the delegate debates and, in particular, the explanation from Delegate Johnson, are also instructive regarding the intent of section 2(b):

MR. S. JOHNSON: ***Section 4 is the distillation of a number of provisions that now appear in the constitution.

The decision-making process as to how the financial resources of the state will be distributed among the various needs of the state was begun with the governor's Budget. It then continues with the General Assembly's disposition of the governor's Budget, both in terms of what he estimated to be available and how he intended those resources to.be deployed.

We have simply stated in this section two things: (1) the allocation of appropriation power to the General Assembly and (2) the requirement that the General Assembly not appropriate more money than they estimate to have available during the year. (Emphasis added.) Remarks of Delegate S. Johnson, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 883.

Delegate Johnson further described the balanced budget provision during debate:

MR. S. JOHNSON: * * *

* * *

Finally, what we did is to bring forward into this section the requirement of a balanced Budget. As it now appears in the present constitution, it says that the General Assembly shall not ·appropriate amounts that exceed the amount of revenue authorized by law to be raised in such time. Now this is not a very strong legal provision-the requirement for a balanced Budget-but it does have two effects. The courts have held that the General Assembly c.annot make an open-ended type appropriation which simply says an agency or the governor can make such expenditures

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as may be required.

The second.thing is it gives the General Assembly-it requires the General Assembly to establish an estimate. Whether they adopt the governor's estimate or whether they modify it themselves, i( requires the General Assembly to establish a ceiling of revenues within which they must appropriate and beyond which they may not go. (Emphasis added.) Remarks of Delegate S. Johnson, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 883-84.

When asked whether "the second sentence of section 4 would not limit the General Assembly in making appropriations to the amount of available funds estimated by the governor in his Budget[,]" Delegate S. Johnson replied:

Mr. S. JOHNSON: * * * It does not prohibit them fi"om amending the governor's estimate either up or down and using that as a ceiling within which they must appropriate. Remarks of Delegates Fay and S. Johnson, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 885. (Emphasis added.)

The explanation disseminated to the voters contemplates, and the Constitutional Convention debates clarify, that the General Assembly may decide its own estimate of available funds and is not constrained by the Governor's estimate.4 Once the legislature determines that

4To assist the General Assembly in estimating those funds available for the ensuing fiscal year, subsection 4(a) of the Commission on Government Forecasting and Accountability Act (25 ILCS l 55/4(a) (West 2012)) provides:

(a) The Commission shall publish, at the convening of each regular session of the General Assembly, a report on the estimated income of the State from all applicable revenue sources for the next ensuing fiscal year and of any other funds estimated to be available for such fiscal year. The Commission, in its discretion, may consult with the Governor's Office of Management and Budget in preparing the report. On the third Wednesday in March after the session convenes, the Commission shall issue a revised and updated set of revenue figures reflecting the latest available information. The House and Senate by joint resolution shall adopt or modify such estimates as may be appropriate. The joint resolution shall constitute the General Assembly's estimate, under paragraph (b) of Section 2 of Article Vlll of the Constitution, of the funds estimated to be available during the next fiscal year.

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estimate, it acts as "a ceiling within which they must appropriate." Remarks of Delegate S. Johnson, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 885. Accordingly, considering the explanation to voters and the delegates' comments, the intent of section 2(b) is that the legislature's appropriations ~uthority is limited by the General Assembly's funds estimate.5

In determining that the General Assembly's authority to appropriate is limited by its funds estimate, we considered whether the constitutional provisions setting out the Governor's veto power lead to a different conclusion. In addition to drafting section 2(b ), the delegates to the Sixth Illinois Constitutional Convention added article IV, section 9( d), authorizing the Governor to "reduce or veto any item of appropriations in a bill presented to him." Ill. Const. 1970, art. IV, §9( d): Neither the Address to the People nor the explanation disseminated to the voters discuss the General Assembly's passage of balanced appropriations with regard to article IV, section 9(d). During the debate on section 5 of the Committee on Revenue and Finance's proposal for a finance article, which became article IV, section 9( d), Delegate Sommerschield expressed opposition to authorizing a reduction veto based specifically on his concern that it would lead the General Assembly to send the Governor appropriations requiring reduction in order to balance the budget:

MR. SOMMERSCHIELD: * * *

* * *

I think there are a number of negative effects that this reduction veto will haye on the legislative system.

· I think first, it would encourage legislative carelessness. I think legislators, as individuals, would have less incentive to be fiscally responsible if the governor had the right and the power to reduce whatever appropriations they finally passed.

I think it would encourage the legislature to appropriate funds in excess of needs, that is to say, practically speaking, there

·are a certain number of influences which I think we all understand, on individual legislators. Knowing that the governor can reduce

5We recognize that, under appropriate circumstances, limited State debt may be incurred and that repayment may be required pursuant to constitutional provision, regardless of the funds estimated to be available by the Governor or the General Assembly. See Ill. Const. 1970, art. IX, §9(c), (d).

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whatever appropriations they passed, I think the feeling might well develop, "Well, let's put in a lot of money here; let's get some good press by funding this particular program with money which we realize is in excess of that needed," and then put the onus of responsibility on the governor to reduc.e that, when he tries to balance the budget. 2 Record of Proceedings, Sixth Illinois Constitutional Convention 906-07.

Since the adqition of the reduction veto in the Illinois Constitution of 1970, it appears that the General Assembly has on occasion appropriated more money thari estimated to be available and allowed the Governor to use the .reduction veto to balance the budget. 6

These facts raise a question as to whether, in authorizing the Governor to use the reduction veto on appropriations bills, the Constitutional Convention delegates intended to permit the General Assembly to appropriate above its estimate of available funds. Other than the concerns of Delegate Sommerschield, we have not found support for that conclusion. In contrast, the language of section 2(b) of the Constitution, along with the explanation provided to voters and the delegate comments concerning t}iat section, establish a clear intent to limit the General Assembly to appropriating within its funds estimate.

CONCLUSION

It is clear that the framers of the Illinois Constitution of 1970 intended the State to adopt a balanced budget every year. To that end, article VIII, section 2(a), sets forth the Governor's responsibility to submit to the legislature a proposed annual budget in which the expenditures do not exceed the funds the Governor estimates to be available for the fiscal year. Once the· Governor submits the proposed budget to the General Assembly, article VIII, section 2(b ), recognizes the General Assembly's power to appropriate for all expenditures of public funds by the State. In exercising this power, the Constitution generally envisions annual appropriations but does not constrain the General Assembly's authority to determine the length of time covered

6See, e.g., Letter to the Editor by Former Governor Dan Walker, Fiscal Crisis, Illinois Issues, February 1978, available at http://www.lib.niu.edu/l 97S/ii78023 l .htm (Governor Walker stated: "In 1974, the legislature substantially overappropriated, as they did in 1972"); see also Special Staff Report, Fiscal 1976 State Budget: Vetoes, Vetoes, More Vetoes, Illinois Issues, October 1975, available at http://www.lib.niu.edu/19]5/ii7510tc.htm ("[t]he constitution directs both the governor and the legislature that appropriations shall not exceed funds estimated to be available during the year for which the budget is prepared (Art. VIII, sec. 2). The Walker administration is confident that the governor's vetoes have brought the budget into balance").

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by its appropriations. The Constitution also allows the General Assembly to establish its own estimate of funds available for the fiscal year and requires it to appropriate within that estimate. The Constitution grants the Governor the authority to review and approve (111. Const. 1970, art. IV, section 9(a)), or review and veto (Ill. Const. 1970, art. IV, sections 9(b), (d)), appropriation bills. While granting the Governor a reduction veto for use on appropriation bills, the Constitution authorizes the General Assembly to override a reduction veto by requiring only "a majority of the members elected to each house."

Although the Governor is granted the authority to reduce or veto items of appropriations in bills, we have found little support in the constitutional language for the proposition that the legislature can send the Governor appropriations that' exceed the legislature's funds estimate. While the historical practice Includes examples of the State reaching a balanced budget only after the use of the reduction veto, the language of the Constitution and evidence surrounding its drafting and adoption strongly support the conclusion that the General Assembly's appropriation authority is limited by its estimate of funds available, which serves as "a ceiling of revenues within which they must appropriate and beyond which they may. not go." Remarks of Delegate S. Johnson,, 2 Record of Proceedings, Sixth Illinois Constitutional Convention 884.

This is not an official opinion of the Attorney General. If we may be of further assistance, please advise.

LYNNE. PATTON Senior Assistant Attorney General Chief, Public Access and Opinions Division

LEP:LAS:an

cc: The Honorable Michael J. Madigan, Speaker of the House The Honorable John J. Cullerton, President of the Senate The Honorable Christine Radogno, Republican Leader of the Senate