No.

5-17-0061

IN THE
APPELLATE COURT OF ILLINOIS
FIFTH JUDICIAL DISTRICT

)
THE AMERICAN FEDERATION OF STATE, ) On interlocutory appeal from the
COUNTY AND MUNICIPAL EMPLOYEES, ) Circuit Court of the Twentieth
AFL-CIO, COUNCIL 31, et al., ) Judicial Circuit, St. Clair County,
) Illinois.
Plaintiffs-Appellees, )
)
v. )
)
BRUCE RAUNER, the Governor of the State )
of Illinois; MICHAEL HOFFMAN, Acting )
Director of Central Management Services; ) No. 15 CH 475.
ILLINOIS DEPARTMENT OF CENTRAL )
MANAGEMENT SERVICES; and SUSANA )
A. MENDOZA, the Comptroller for the State )
of Illinois, )
)
Defendants, )
)
THE PEOPLE OF THE STATE OF ILLINOIS, ) The Honorable ROBERT P.
) LeCHIEN, Judge Presiding.
Intervenor-Defendant-Appellant. )

BRIEF OF DEFENDANTS BRUCE RAUNER, GOVERNOR OF ILLINOIS;

MICHAEL HOFFMAN, ACTING DIRECTOR OF CENTRAL MANAGEMENT
SERVICES; AND ILLINOIS DEPARTMENT OF
CENTRAL MANAGEMENT SERVICES

Dennis Murashko Jack Vrett

General Counsel, Chief Labor & Employment Counsel,
Office of the Governor Office of the Governor

Kenton J. Skarin 100 W. Randolph Street, Suite 1-6100

Deputy General Counsel, Chicago, IL 60601
Office of the Governor 312-814-2121
kenton.skarin@illinois.gov

Special Assistant Attorneys General for Defendants Bruce Rauner, Michael Hoffman, and
Illinois Department of Central Management Services
 POINTS AND AUTHORITIES

Page:

I. The Attorney Generals Efforts to Prevent State Employees from Being

Paid Are Almost a Year Late 3

State v. AFSCME, Council 31, 2016 IL 118422 3, 4, 5

Ill. Const. art. V 15 4

Ill. R. Evid. 201(b) 5

Madigan v. Yballe, 396 Ill. App. 3d 481, 493-94 (1st Dist. 2009) 6

People v. Clark, 406 Ill. App. 3d 622, 633 (2d Dist. 2010) 5

II. There Is No Record to Evaluate the Attorney Generals Assertion that

the Balance of the Equities Favors Denying State Workers Their Pay 6

i
 NATURE OF THE CASE

The Attorney General continues her ongoing efforts to precipitate an artificial

crisis by demanding that this court deny state employees their paychecks. The Attorney

General attempts to justify her brinkmanship with the livelihoods of state employees by

asserting a new-found concern about constitutional structure. There is one problem: Her

entire argument in this Court hinges on a Supreme Court decision she chose to ignore

from March of last year until late January 2017, even though her office participated in

litigating both that case and this one. In other words, for almost a year the Attorney

General was perfectly willing to ignore what she now claims the Constitution requires

including by paying her own employees with vouchers drawn on the states General

Revenue Fund in the absence of appropriations. If a private litigant sat on its hands as the

Attorney General has, principles like laches would be serious impediments to her current

efforts to prevent Illinoisans from being paid for their hard work.

There is a second problem with the Attorney Generals motion. She asserts that

the balance of the equities favors dissolution of the order that has allowed numerous state

employees to be paid for the past twenty-one months while the General Assembly failed

to fulfil its obligations to pass a budget, based on supposed harm to the people of the

state. That is wrong, but at a minimum the Attorney General lacks any factual basis to

support her assertion (as evidenced by her failure to cite anything in the record in

support). Instead, she offers general assurances that essential state operations will

continue. There is nothing in the record to explain why that is so or how such essential

state operations could be defined. Nor is there any way from the present record to

1
determine what state operations are deemed essential. The Attorney Generals balance

of the equities assertion rests on thin air.

At bottom, if this Court were to accede to the Attorney Generals invitation to

alter the status quo (and it should not), the Court would need to have a full understanding

of the implications of such an order, which is impossible on the current state of the record

in this case. This Court should therefore affirm the Circuit Court or, at a minimum,

remand for further proceedings to ensure that there is no precipitous shut-off of state

workers paychecks.

ISSUE PRESENTED

Whether this Court should dissolve a preliminary injunction that protects the

paychecks of tens of thousands of state employees based on the Attorney Generals

belated invocation of a year-old decision and in the absence of any fact-finding as to

essential employees who should continue to be paid.

STATEMENT OF FACTS

The Attorney Generals Statement of Facts presents a partial, but incomplete,

telling of the underlying facts in this appeal. It elides the timing of the Attorney

Generals motion to stop state employees from being paid and the significant negative

impacts of the Attorney Generals motion if granted. The Defendants who are parties to

this brief wish to bring the following facts to the Courts attention in deciding this

interlocutory appeal.1

First, the Attorney General waited roughly ten months after the decision she

believes mandates state employees to lose their paychecks before taking action. While

1
While then-Defendant Comptroller Leslie Munger actively supported attempts to ensure that
state employees receive paychecks for the work they perform, her successor as Comptroller has
declined to support pay for state employees. See C.931-32 n.2.

2
the procedural dates the Attorney General lists are accurate so far as they go, the key

date, March 24, 2016, is left out. On that date, the Supreme Court issued the decision,

State v. AFSCME, Council 31, 2016 IL 118422 (2016), on which the Attorney General

bases her entire argument.2 But although the Attorney General participated in that case

and therefore knew of its outcome, she waited until January 26, 2017, some ten months

later, to file the present motion. C.931-56. The Attorney Generals opening brief before

this Court does not acknowledge, much less explain, that delay.

Second, the Attorney Generals motion glosses over the critical role the court

order at issue has played for twenty-one months. The order has been in place in some

form since July 10, 2015. See C.239-41. Since that time, the order has provided the legal

basis for the Comptroller to draw and issue warrants for state employees paychecks

at their normal rates of pay. C.241. The order also recognizes the dual need to prevent

families from suffering due to loss of wages while also protecting the state from great

liability because of remedies available to employees under the Fair Labor Standards Act

that include economic loss, interest, liquidated damages and attorney fees. Id. While

there are other sources of authority for payment, as the Attorney General herself appears

to admit, see Br.33 (essential state operations will continue), there is no record below

regarding the scope of such alternative sources of authority. Thus, neither this Court nor

the parties have any ability at the present time to quantify the impact of the Attorney

Generals motion, though it is likely to be substantial.

2
The petition for rehearing was denied May 23, 2016.
3
 ARGUMENT

I. The Attorney Generals Efforts to Prevent State Employees from

Being Paid Are Almost a Year Late

The Attorney Generals entire brief is predicated on State v. AFSCME, Council

31, 2016 IL 118422. She insists that it is directly on point and establishes that

Plaintiffs cannot show a likelihood of success on the merits. Br.16. She then offers a

paean to the states appropriations clause, citing the Federalist Papers and Storys

Commentaries on the Constitution of the United States. Br.18-21. To hear the Attorney

General tell it, the appropriations clause is the pinnacle of constitutional structure, a

fundamental part of the separation of powers. Br.20.

Unfortunately, the timing of the Attorney Generals argument undercuts her

supposed concern for the appropriations clause. State v. AFSCME was decided on March

24, 2016. It was not until February 14, 2017some ten and a half months laterthat the

Attorney General filed her motion to dissolve the July 2015 Order. C.931-56. A volume

of Joseph Story cannot bridge that gap. If the Attorney General believed the arguments

that she is now advancing in this Court, she abdicated her constitutional role as the legal

officer of the State, Ill. Const. art. V 15, by sitting on her hands for months after a

supposedly-controlling decision issued.

And the Attorney General cannot claim that she somehow was ignorant of the law

or of the issues in this case. She has been involved in this litigation since its inception.

While she just recently intervened as a party for purposes of filing the motion whose

denial is under consideration in this proceeding, see C.926-29, her office entered

appearances in the case on July 6, 2015, and July 9, 2015. See C.26-27, 95-96. In fact,

as this Court knows, there was a dispute at that time regarding the Attorney Generals

4
asserted ability to advance her views in this case over those of the actual named

defendant, then-Comptroller Leslie Munger. See C.152-157 (motion of Comptroller

Munger requesting representation by special counsel); C.99-104 (memorandum in

support explaining that Attorney General had an irreconcilable conflict of opinion with

regard to how the Comptroller should carry out her statutory duties). As a result, the

Attorney Generals office was present in the Circuit Court on July 9, 2015, when the July

10, 2015, order was argued. See R.2 (noting attorneys appearing for Attorney General).3

In the same way, the Attorney General was involved throughout State v.

AFSCME. Her office even briefed and argued the case at the Supreme Court. See State

v. AFSCME, 2016 IL 118422, 51 N.E.3d at 740 (listing counsel). The Attorney General

had full information about both the present litigation and the precedent she now seeks to

invoke. She did nothing.

Worse, the Attorney General used the very same court order she now seeks to

vacate to pay her own employees over the past year. The Illinois Comptrollers Office

publishes quarterly expenditure reports for each state agency, including the Attorney

Generals office. The report for the first three quarters of Illinois Fiscal Year 2017 is

available. See Office of the Comptroller, SA02 Report, Attorney Generals Office,

available at ftp://ftp.illinoiscomptroller.com/SAMSMonthlyRpt/SA02_2017_03-31-

3
The proper scope of state employee pay in the absence of appropriations is also pending in a
separate case in St. Clair County involving Defendants Governor, Central Management Services,
and the Acting Director of CMS. See Fraternal Order of Police Illinois Troopers No. 41 v.
Illinois Department of State Police, 16-CH-820 (St. Clair Co.). Unlike this case, where the
Attorney General is attempting to stop payment of base wages to state employees, that case
involves so-called step increases, pay raises granted to some state employees based on
seniority. There are a number of reasons to continue paying employees their regular salaries for
work performed in the absence of appropriations (such as ensuring that essential services,
however defined, continue to be provided) that are not applicable to the separate issue of whether
to give employees raises under those circumstances.

5
17_340.pdf.4 That report shows that the Attorney General spent over $23 million dollars

from the General Revenue Fund for employee payroll costs under the detailed object

codes of Regular Positions, Contractual Payroll Employees, and Social Security and

Medicare contributions from July 1, 2016 through March 31, 2017. Id. All of those

expenditures were made from a budget line established at the Comptrollers office titled

CO, OPERATIONAL EXPENSES. Id. That line is nothing more than the

Comptrollers coding for payments made pursuant to the very court order the Attorney

General seeks to vacate. Even as she was preparing and then filing her motion, the

Attorney General was availing herself of the very order she now asserts is barred by the

Constitution.

While principles laches generally do not apply to governmental entities, see, e.g.,

Madigan v. Yballe, 396 Ill. App. 3d 481, 493-94 (1st Dist. 2009), it is helpful to

remember that courts are reluctant to come to the aid of a party who has knowingly

slept on his rights to the detriment of the opposing party. Id. at 493 (quoting Tully v.

State, 143 Ill.2d 425, 432 (1991)). If the Attorney General were a private party, it would

not be unreasonable for a court reviewing an equitable remedy like the present injunction

to conclude that she failed to exercise due diligence in raising her newfound

constitutional concerns to attack state employees paychecks. Id. The state and its

employees have relied on the July 2015 Order for months, while the Attorney General

stood by and similarly benefitted from the order. Those principles further highlight the

4
This Court may take judicial notice of the information obtained from the sources cited herein.
See, e.g., Ill. R. Evid. 201(b) (court may take judicial notice of information capable of accurate
and ready determination by resort to sources whose accuracy cannot be questioned); People v.
Clark, 406 Ill. App. 3d 622, 633 (2d Dist. 2010) (information acquired from mainstream internet
sites is reliable enough to support a request for judicial notice).

6
fact that the Attorney Generals purported concern for constitutional structure is

undermined by her own actions.

II. There Is No Record to Evaluate the Attorney Generals Assertion that

the Balance of the Equities Favors Denying State Workers Their
Pay

Even if the Attorney Generals motion were not tellingly late, there is no record

for this Court to evaluate her assertion that [t]he balance of the equities favors denying

state workers their pay. Br.33. Surprisingly absent from the discussion that follows is

any discussion of those equities, or what they entail. In fact, the Attorney General

acknowledges that Plaintiffs below argued that no one can predict what will happen if

the July 10 order is dissolved. Br.33 (quoting C.1025-27). Plaintiffs are exactly right

on this point. The Attorney Generals motion is an attempt to push this Court into taking

action without an understanding of what will occur.

The Attorney General never disputes that no one can predict what will happen

if the July 2015 order were vacated. Instead, she at least tacitly admits that the statement

is correct by asserting in response that the very real concern about what will happen if

state employees are denied their pay does not substitute for a valid legal claim. Br.33.

In other words, the Attorney Generals response is to rely on her newly-adopted

arguments to ignore the equitiesand in turn the real-life consequences for Illinois

citizens whose pay she seeks to stop.

And the Attorney General expressly admits that at least some employees must be

paid even in the absence of appropriations, stating that essential state operations may

continue after the injunction is dissolved. Br.37. In the court below, the parties to this

brief explained a number of potential grounds for paying employees that should be

evaluated. If that is the case, the responsible thing for this Court to do is not to dissolve
7
the July 2015 Order and then let chaos reign while government and courts attempt to

come to some (currently undefined) resolution of which employees are essential. That

process is likely to be difficult, contested, and damaging to the state, its employees, and

its people. If essential employees must be determined, far better to do so with the status

quo in place. And if the current complaint needs to be amended to do that, as the

Attorney General appears to believe, Br.34, the responsible approach is to remand this

case for that purpose, not to precipitate a crisis.

Further, even the limited record that is available suggests what this Court already

knows as a matter of common sensesiding with the Attorney General would be

devastating to state employees. The record contains two affidavits from Illinois State

Police troopers who explain that they rely on their wages to pay their mortgage, two car

payments, purchases for food, clothes, utility bills, medical and dental bills, household

expenses of a normal nature, and education expenses. C.85-86; see also C.87-88

(similar). Even if they received reduced wages at a minimum wage ratemore than the

Attorney General believes they deserve, these state employees would be unable to meet

[their] financial obligations, run the risk of having [their] home[s] go into foreclosure and

being [sic] unable to pay additional expenses. C.86; see also C.88 (same). Losing a

paycheck would prevent state workers with four children and a spouse, C.86, from

paying their bills. That is the real balancing of the equities that the Attorney Generals

motion ignores.

At bottom, the Attorney General is wrong to assert that there are difficult

judgments to be made when deciding whether state employees should be paid. Br.38.

8
State employees come to work every day, and they deserve to be compensated

accordingly. That is where the equities lie.

CONCLUSION

The July 2015 Order, as reaffirmed February 16, 2017, should be affirmed or, at a

minimum, remanded for further proceedings to ensure that there is no precipitous shut-off

of state workers paychecks.

Dated: April 7, 2017 BRUCE RAUNER, the Governor of

the State of Illinois; MICHAEL
HOFFMAN, Acting Director of
Central Management Services;
ILLINOIS DEPARTMENT OF
CENTRAL MANAGEMENT
SERVICES, Defendants

/s/ Kenton J. Skarin

Kenton J. Skarin

Dennis Murashko
General Counsel,
Office of the Governor

Kenton J. Skarin
Deputy General Counsel,
Office of the Governor

Jack Vrett
Chief Labor & Employment
Counsel, Office of the Governor

100 W. Randolph Street, 16th Floor

Chicago, IL 60601
312-814-2121
kenton.skarin@illinois.gov

Special Assistant Attorneys General

for Defendants Bruce Rauner,
Michael Hoffman, and Illinois
Department of Central Management
Services

9
 SUPREME COURT RULE 341(c)
CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The

length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule

341(h)(1) statement of points of authorities, the Rule 341(c) certificate of compliance,

and the certificate of service, is 9 pages.

/s/ Kenton J. Skarin

Kenton J. Skarin
Deputy General Counsel