taxpayer action to restrain and enjoin the premature and illegal expenditure of funds for elective abortions and other procedures under recently-enacted House Bill 40 (“HB 40”).

IN THE APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT SPRINGFIELD RIGHT TO LIFE; et al., ) ) Plaintiffs-Appellants, ) ) 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; and SUSANA ) MENDOZA, Comptroller of the State of Illinois, ) ) Defendants-Appellees. ) Appeal from the Seventh Judicial Circuit Court, Sangamon County, Illinois, No. 2017 MR 1032. The Honorable Jennifer M. Ascher, Judge Presiding. BRIEF OF PLAINTIFFS-APPELLANTS 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-Appellants 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-Appellants Bradley E. Huff Graham & Graham, Ltd. 1201 S 8th St Springfield, IL 62703 (217) 523-4569 Counsel for Plaintiff-Appellant Diocese of Springfield-in-Illinois ORAL ARGUMENT REQUESTED i TABLE OF POINTS AND AUTHORITIES STANDARD OF REVIEW............................................................................................7 735 ILCS 5/2-619.1.........................................................................................................7 735 ILCS 5/2-619(a)(9)...................................................................................................8 Patrick Eng’g, Inc. v. City of Naperville, 2012 IL 113418................................................8 Erickesen v. Rush Presbyterian St. Luke’s Medical Center, 289 Ill.App.3d 159 (1st Dist. 1997) ..........................................................................................................8 In Re Estate of Powell, 2014 IL 115997...........................................................................8 Mohanty v. St. John Heart Clinic, S.C., 225 Ill.2d 52 (2006)............................................8 County of DuPage v. Gavrilos, 359 Ill.App.3d 1077 (2d Dist. 2007)................................8 Illinois Supreme Court Rule 366(a)(5).............................................................................9 ARGUMENT.................................................................................................................9 I. The Circuit Court Erred In Dismissing Plaintiffs’ Claim That Expenditures For HB40 Violate The Revenue Estimate And Appropriations Requirements Of The Illinois Constitution, art. VIII, § 2(b)....................................................9 Ill. Const., art. VIII, § 2(b)........................................................................................ .9, 10 COGFA Act, 25 ILCS 155/4(a)........................................................................................9 P.A. 100-21....................................................................................................................10 Governor’s Office of Management and Budget, Illinois Economic and Fiscal Policy Report (Oct. 12, 2017), https://www.illinois.gov/gov/budget/Documents/Economic%20and%20Fiscal %20Policy%20Reports/FY%202017/Economic_and_%20Fiscal_%20Policy_ %20Report_10.12.17.pdf.........................................................................................10 A. Payments Pursuant To HB 40 Would Violate Article VIII, § 2(b) of the Illinois Constitution..............................................................................10 Ill. Const., art. VIII, § 2(b)............................................................................................ .11 735 ILCS 5/2-619(a)(9)................................................................................................ .11 Baker v. Carr, 369 U.S. 186 (1962) .............................................................................. .11 ii 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......................................................................... .12 Rock v. Thompson, 85 Ill.2d 410 (1981)................................................................... 13, 15 Donovan v. Holzman, 8 Ill.2d 87 (1956) ............................................................ 13, 14, 15 Committee for Educational Rights v. Edgar, 174 Ill.2d 1 (1996) ....................................14 Elliot v. Board of Education, 64 Ill. App. 3d 229 (1st Dist. 1978)...................................14 People v. Moore, 240 Ill. 408 (1909)............................................................................. .14 Marbury v. Madison, 5 U.S. 137 (1803).........................................................................14 Seymour v. Region One Bd. of Educ., 803 A.2d 318 (Conn. 2002)............................ 15, 16 C. Whether “Clear Standards” Exist By Which HB40 Revenue Estimates Or Appropriations Are To Be Evaluated Is Irrelevant Since There Were No Revenue Estimates Or Appropriations.................................16 i. Since There Was No Revenue Estimate At All, The Sufficiency Of Standards Governing Evaluation Of Revenue Estimates Is Irrelevant.................................................................................. .16 COGFA Act, 25 ILCS 155/4(a).............................................................................. .passim Ill. Const., art. VIII, § 2(b)................................................................................. 17, 18, 21 Senate Joint Resolution 42............................................................................................ .17 Ill. Const., art. IV, § 1 ................................................................................................... .17 People v. Ousley, 235 Ill.2d 299 (2009) ................................................................... 20, 21 People v. Robinson, 217 Ill.2d 43 (2005) ...................................................................... .20 People v. Delvillar, 235 Ill.2d 507 (2009)..................................................................... .21 iii ii. Since There Was No Revenue Estimate At All, And No Appropriation For HB40, The Existence Of “Clear Standards” For Determining Whether The Non-Existent Appropriations Exceeded The Non-Existent Revenue Estimate Is Irrelevant.. 21 Ill. Const., art. VIII, § 2(b)....................................................................................... 22, 23 Ill. Collaboration on Youth v. Dimas, 2017 IL App (1st) 162471.............................. 22, 23 People ex rel. Ogilvie v. Lewis, 49 Ill. 2d 476 (1971) .................................................... .23 Ill. Att’y Gen’l Op. (Unofficial) I-14-006.......................................................................23 iii. There Was No Appropriation For HB40, So The Existence Of “Clear Standards” Governing The Sufficiency Of Appropriations Is Irrelevant. ...................................................23 Ill. Const., art. VIII, § 2(b)............................................................................................ .24 COGFAAct, 25 ILCS 155/4(a)......................................................................................24 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.............................24 Baker v. Carr, 369 U.S. 186 (1962) ...............................................................................25 Ill. Const., art. VIII, § 2(b)............................................................................................ .25 COGFAAct, 25 ILCS 155/4(a)......................................................................................25 Flast v. Cohen, 392 U.S. 83 (1968)................................................................................25 Burgos v. State, 118 A.3d 270 (N.J. 2015)..................................................................... .25 Ehrlich v. Perez, 908 A.2d 1220 (Md. 2006)................................................................. .26 Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991)................................26 Town of Brookline v. Governor, 553 N.E.2d 1277 (Mass. 1990).....................................26 Bruneau v. Edwards, 517 So.2d 818, 824 (La. Ct. App. 1987)........................................26 Michigan Ass’n o f Counties v. Dep’t of Mgmt. & Budget, 345 N.W.2d 584 (Mich. 1984)............................................................................................................26 Wein v. New York, 347 N.E.2d 586 (N.Y. 1976)............................................................. .26 iv Boneno v. State, 284 S.E.2d 170 (N.C. 1981).................................................................26 In re County of Oneida v. Berle, 404 N.E.2d 133, 135 (N.Y. 1980) ................................26 Bishop v. Governor of Md., 380 A.2d 220, 223 (Md. 1977)............................................27 Camden v. Byrne, 411 A.2d 462 (N.J. 1980) ..................................................................27 II. The Circuit Court Erred In Dismissing Plaintiffs’ Claim That Implementing HB 40 Prior to June 1, 2018, Violates the Illinois Constitution, article IV, section 10, and the Effective Date of Laws Act, 5 ILCS 75/2..........................27 Ill. Const., art. IV, § 10 ..................................................................................................28 Effective Date of Laws Act, 5 ILCS 75/2.......................................................................28 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) .........28 People ex rel. Alvarez v. Howard, 2016 IL 120729.........................................................28 A. HB 40 passed out of the Senate and onto the Governor’s desk on September 25, 2017...............................................................................28 B. The Governing Rules of The Illinois Senate Dictate that September 25, 2017, is HB 40’s Passage Date. ............................................................ .29 Ill. Sen. R. 12-2 .............................................................................................................29 Mason’s Manual of Leg. Proc. (“Mason’s Manual”) § 467(1) (2010). ............................29 Ceresa v. City of Peru, 133 Ill. App. 2d 748 (3d Dist. 1971).......................................... 29 Bill Status, HB 40, http://www.ilga.gov/legislation/billstatus.asp?DocNum=40&GAID= 14&GA=100&DocTypeID=HB&LegID=99242&SessionID=91 .............................29 Mason’s Manual § 737(5)..............................................................................................29 Ill. Sen. R. 7-15 .............................................................................................................30 Mason’s Manual § 737(6)..............................................................................................30 C. The Reasoning Adopted By The Circuit Court Would Put the Legislature in Perennial Violation of the Illinois Constitution’s Presentation Clause............................................................................. .30 v Ill. Const., art. IV, § 9(a)........................................................................................ . 30, 31 Bill Status, Senate Bill 1, http://www.ilga.gov/legislation/billstatus.asp?DocNum=1&GAID=14&GA =100&DocTypeID=SB&LegID=98844&SessionID=91&SpecSess=0. ...............30-31 Ill. Const., art. IV, § 8 ................................................................................................... .31 Ill. Const., art. IV, § 10 ..................................................................................................31 5 Record of Proceedings, Sixth Illinois Constitutional Convention ................................31 D. Defendants Have Not Rebutted Any of the Above Authorities...........32 Ill. Sen. R. 12-2 .............................................................................................................33 E. Contrary To The Circuit Court’s Conclusion, Withdrawal Of The Motion To Reconsider Was The “Final Legislative Action Prior To Presentation To The Governor.” ......................................................... .32 Mason’s Manual § 737(5)..............................................................................................32 Mason’s Manual § 737(6)..............................................................................................32 Effective Date of Laws Act, 5 ILCS 75/2.......................................................................32 Mulligan v. Joliet Port District, 123 Ill.2d 303 (1988) ....................................... 33, 34, 35 3 Record of Proceedings, Sixth Illinois Constitutional Convention. ...............................34 City of Springfield v. Allphin, 74 Ill.2d 117 (1978).........................................................35 People v. Shumpert, 126 Ill.2d 344 (1989) .....................................................................35 Ill. Const., art. IV, § 5(a)................................................................................................37 Orr v. Edgar, 298 Ill. App. 3d 432, 443 (1st Dist. 1998) ................................................37 F. The Definition of “Passed” Accepted By The Circuit Court Violates A Principal Purpose of Section 10: To Force The General Assembly to Complete Its Work By May 31.............................................................37 Ill. Const., art. IV, § 10 ........................................................................................... .37, 39 City of Springfield v. Allphin, 74 Ill.2d 117 (1978)................................................... 37, 39 People ex rel. Alvarez v. Howard, 2016 IL 120729.........................................................39 vi Mulligan v. Joliet Port District, 123 Ill.2d 303 (1988) ...................................................39 People v. Shumpert, 126 Ill.2d 344 (1989) .....................................................................39 Effective Date of Laws Act, 5 ILCS 75/2.......................................................................39 III. This Court Should Grant Plaintiffs Injunctive Relief. ...................................40 A. Plaintiffs Have Clearly Ascertainable Rights In Need Of Judicial Protection............................................................................................. .39 Barco Mfg. Co. v. Wright, 10 Ill.2d 157 (1956) ....................................................... .39, 40 735 ILCS 5/11-301....................................................................................................... .39 Jenner v. Illinois Dep’t of Commerce & Econ. Opportunity, 2016 IL App (4th) 150522 (4th Dist. 2017)........................................................................................................40 Martini v. Nestch, 272 Ill. App. 3d 693 (1st Dist. 1995) .................................................40 Snow v. Dixon, 66 Ill. 2d 443 (1977)............................................................................. .41 Krebs v. Thompson, 387 Ill. 471 (1944) ........................................................................ .41 B. Absent Injunctive Relief, Plaintiffs And All Other Illinois Taxpayers Will Suffer Irreparable Harm..............................................................40 C. Plaintiffs Have No Adequate Remedy at Law. ....................................41 Jones v. O’Connell, 266 Ill. 443 (1915) ........................................................................ .41 735 ILCS 5/11-301, 11-303 ...........................................................................................42 D. Plaintiffs Have Demonstrated A Likelihood Of Success On The Merits....................................................................................................42 CONCLUSION............................................................................................................42 1 NATURE OF THE ACTION This is a taxpayer action to restrain and enjoin the premature and illegal expenditure of funds for elective abortions and other procedures under recently-enacted House Bill 40 (“HB 40”). In their Verified Amended Taxpayer Complaint (“Complaint”), Plaintiffs, the named pro-life organizations and the Diocese of Springfield, representing certain of their Illinois taxpayer members, as well as named Illinois legislators asserting their rights as taxpayers, challenge the effectiveness of HB 40. (C865-880, 887). HB 40 reverses the prohibition on funding elective abortions1 by the State’s Medicaid and employee health insurance programs and mandates coverage by Medicaid for all “reproductive health care that is otherwise legal.” In Count I of the Complaint, Plaintiffs allege that no funds may be expended in furtherance of HB 40 because, contrary to the mandate of the Illinois Constitution (Ill. Const.1970, art. VIII, §2(b)) (“Section 2(b)”), the General Assembly neither made any estimate of the revenues necessary to fund HB 40 nor appropriated funds to pay for HB 40. (C38-39, 877-878). In Count II of the Complaint, Plaintiffs challenge the January 1, 2018 effective date of HB 40 as also contrary to the requirements of the Illinois Constitution. Plaintiffs allege that HB 40 cannot be effective until June 1, 2018, because it did not pass out of the General Assembly until September 25, 2017, after a motion to reconsider in the Senate was withdrawn, which is well after the May 31 cut-off imposed by the Illinois Constitution and the Effective Date of Laws Act for an earlier effective date. (Ill.Const.1970, art. IV, §10; 5 ILCS 75/2). (C39-40, 878-879). 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. 2 The Circuit Court granted Defendants’ motion to dismiss Plaintiffs’ Complaint pursuant to Section 2-619.1 of the Code of Procedure. (C73-97, 864). The Circuit Court held that Illinois courts lack jurisdiction, under the political question doctrine, to interpret or enforce the revenue estimate and appropriations requirements of Section 2(b) and thus dismissed Plaintiffs’ Count I. (R70). The Circuit Court further held that HB 40 was passed on May 10, 2017, despite its continued pendency in the Senate and being withheld from the governor until September 25, 2017, and thus dismissed Plaintiffs’ Count II. (R71). The Circuit Court also denied Plaintiffs’ motion for a temporary restraining order and preliminary injunction, which sought to foreclose Defendants from implementing HB 40 beginning January 1, 2018. (C. 864). Questions are raised on the pleadings. ISSUES PRESENTED FOR REVIEW 1. Whether the Circuit Court erred in finding that Plaintiffs’ claims that expending funds pursuant to HB 40 violates the revenue estimate and appropriations requirements of Article VIII, § 2(b) of the Illinois Constitution present non-justiciable political questions. 2. Whether the Circuit Court erred in dismissing Plaintiffs’ claim that according HB 40 a January 1, 2018 effective date violates Article IV, §10 of the Illinois Constitution and the Effective Date of Laws Act (5 ILCS 75/2). JURISDICTIONAL STATEMENT This Court has jurisdiction over this appeal pursuant to Supreme Court Rules 301 and 303. This is an appeal as of right from a final judgment of the Circuit Court. On 3 December 28, 2017, the Circuit Court granted Defendants’ motion to dismiss pursuant to 735 ILS 5/2-619.1 and dismissed Plaintiffs’ complaint with prejudice. (C864). By that same Order, the Circuit Court denied Plaintiffs’ motion for a temporary restraining order and preliminary injunction. On January 2, 2018, Plaintiffs timely filed their Notice of Appeal from the Circuit Court’s December 28, 2017 Order. (C888-894). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Ill. Const. art. VIII, §2(b) provides: State Finance * * * 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.” 25 ILCS 155/4(a) provides: 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 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 VIII of the Constitution, of the funds estimated to be available during the next fiscal year. Ill.Const. 1970, art. IV, §9(a) provides: Veto Procedure (a) Every bill passed by the General Assembly shall be presented to the Governor within 30 calendar days after its passage. The foregoing requirement shall be judicially enforceable. If the Governor approves the bill, he shall sign it and it shall become law. Ill.Const. 1970, art. IV, §10 provides: 4 Effective Date of Laws The General Assembly shall provide by law for a uniform effective date for laws passed prior to June 1 of a calendar year. The General Assembly may provide for a different effective date in any law passed prior to June 1. A bill passed after May 31 shall not become effective prior to June 1of 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. 5 ILCS 75/2 provides: Bills passed after May 31. A bill passed after May 31 of a calendar year shall become effective on June 1 of the next calendar year unless the General Assembly by a vote of three-fifths of the members elected to each house provides for an earlier effective date in the terms of the bill or unless the General Assembly provides for a later effective date in the terms of the bill; provided that if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date. STATEMENT OF FACTS I. Legislative History of HB 40. HB 40 reverses the prohibition on funding of elective abortions 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.” (C866; Am. Comp., para. 1). 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 10, but on that same day, Senator Don Harmon, who voted in favor of HB 40, filed a motion to reconsider the vote. (C874; Am. Comp., paras. 46-47). 5 On September 25, 2017, Sen. Harmon withdrew the motion to reconsider. HB 40 passed out of the Senate that day and was sent to the Governor. The Governor signed HB 40 on September 28, 2017. (C874; Am. Comp., paras. 48-49). The General Assembly did not adopt any revenue estimate in connection with HB 40. (C873; Am. Comp., para. 43). Defendants asserted that the General Assembly had access to several different estimates, but admitted that no estimate was adopted by both the Senate and the House. (C78-79, 85). 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/vitalstatistics/abortion-statistics. Approximately 75% of pregnant women obtaining abortions have an income below 200% of Federal Poverty Level, according to the Guttmacher Institute, the former research arm of Planned Parenthood.2 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.3 Therefore, under HB 40, approximately 30,000 of the state’s annual 40,000 abortions would become eligible to be paid for by Medicaid. (C871-872; Am. Comp., paras. 34-37). According to data from the Illinois Department of Healthcare and Family 2 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. (C872, fn. 2). 3 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 (last visited Dec. 19, 2017). (C872, fn. 3). 6 Services, the state’s average cost per abortion over the past five years is between $750 and $1,000. Using numbers provided by the Guttmacher Institute and the State, then, HB 40 should require the people of Illinois to pay between $22.5 and $30 million dollars every year for elective abortions alone, to say nothing 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. (C872; Am. Comp., paras. 37-39). III. Procedural History. On December 6, 2017, Plaintiffs’ Petition For Leave To File A Taxpayer Action To Restrain And Enjoin The Disbursement Of Public Funds was granted without objection. (C10-26, 61). Plaintiffs’ Complaint was comprised of two counts. In Count I, Plaintiffs alleged that expenditure of funds in furtherance of HB 40 violates Section 2(b) because the General Assembly made no estimate of the revenues necessary to fund HB 40 and did not appropriate funds to pay for HB 40. (C38-39, 877-878). In Count II of their Complaint, Plaintiffs alleged that HB 40 cannot become effective until June 1, 2018, because it did not pass the Illinois Senate and both houses of the General Assembly until September 25, 2017, after a motion to reconsider filed in the Senate was withdrawn, which is after the May 31 cut-off imposed by the Illinois Constitution and the Effective Date of Laws Act. (Ill.Const.1970, art. IV, §10; 5 ILCS 75/2). (C39-40, 878-879). 4 4 On December 28, 2017, Plaintiffs were granted leave to file their Verified Amended Taxpayer Complaint, which did not substantively change the nature of their claims and is the operative complaint here. (C865-880, 887, R13-14). 7 Defendants moved to dismiss Count I of Plaintiffs’ Complaint arguing that it raises non-justiciable political questions and to dismiss Count II of Plaintiffs’ Complaint arguing that it was passed by the Senate on May 10, 2017, despite the pendency of a motion to reconsider in the Senate until September 25, 2017. (C80-96). The Circuit Court granted Defendants’ motion to dismiss, finding that Plaintiffs’ claim in Count I that Section 2(b) prohibits the expenditure of funds for HB 40 was a non-justiciable political question. The Circuit Court ruled, “I do find that the question of the constitutionality of the payments pursuant to HB 40 is a political question for which I lack jurisdiction.” (R70). The Circuit Court further stated, “I find that the Plaintiffs’ relief that is sought would result in a violation of the separation of powers.” Id. The Circuit Court concluded that it could not “mandate the process on the estimate of revenues or the appropriation of those revenues” because those are inherently political questions. Id. With respect to Plaintiffs’ claim in Count II, the Circuit Court found that HB 40 passed “at the time of its final legislative action prior to presentation to the governor” and that “it passed on May 10th” and, therefore, that its effective date is January 1, 2018. (R71). The Circuit Court held that the filing of a motion to reconsider and withdrawal of that motion without taking any action on the motion “cannot be deemed a final legislative act changing the effective date of the law.” (R71). The Circuit Court also stated, “The argument that House Bill 40 wasn’t presented to the governor within 30 days of its passage, I do not believe changes its effective date.” (R72). STANDARD OF REVIEW Defendants’ Motion to Dismiss was a combined motion pursuant to 735 ILCS 5/2-619.1. Defendants moved to dismiss Count I pursuant to 735 ILCS 5/2-619(a)(9), 8 asserting that claim presents political questions and, accordingly, is not justiciable. “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. A Section 2–619 motion to dismiss admits all well-pleaded facts in the complaint and will only be granted if there are no disputed issues of fact. Erickesen v. Rush Presbyterian St. Luke’s Medical Center, 289 Ill.App.3d 159, 165 (1st Dist. 1997). Defendants moved to dismiss Count II pursuant to 735 ILCS 5/2-615, which “tests the legal sufficiency of a complaint.” Patrick Eng’g, Inc., 2012 IL 113418, ¶ 31. “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. A de novo standard of review governs the Circuit Court’s ruling dismissing a complaint pursuant to either Section 2-615 or 2-619 of the Code of Civil Procedure. In Re Estate of Powell, 2014 IL 115997, ¶12; Erickesen, 289 Ill.App.3d at 165. Plaintiffs ask this Court not only to reverse the dismissal of their complaint but also to reverse the denial of their motion for temporary restraining order and preliminary injunction and to enter a preliminary injunction enjoining the implementation and enforcement of HB 40. In order to obtain a preliminary injunction, Plaintiffs were required to 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). Implicit in the Circuit Court’s (erroneous) decision dismissing Plaintiffs’ Complaint was a determination that Plaintiffs could not 9 show that they possessed clearly ascertained rights in need of immediate protection or a likelihood of success on the merits. As set forth herein, however, the Circuit Court erred in dismissing Plaintiffs’ Complaint and Plaintiffs established each of the elements necessary to the grant of injunctive relief such that this Court should, upon reversal of that dismissal, determine that Plaintiffs are entitled to injunctive relief. Pursuant to Supreme Court Rule 366(a)(5), this Court may, “in its discretion, and on such terms as it deems just,” “enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief … that the case may require.” ARGUMENT I. The Circuit Court Erred In Dismissing Plaintiffs’ Claim That Expenditures For HB 40 Violate The Revenue Estimate And Appropriations Requirements Of The Illinois Constitution, art. VIII, § 2(b). The framers of the 1970 Illinois Constitution added two complementary provisions on the expenditure of state taxpayer funds to the Legislative Article: 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 estimate. See Ill. Const., art. VIII, § 2(b). The General Assembly later enacted the COGFA Act, 25 ILCS 155/4(a), which codifies the method of adopting that revenue estimate, by joint resolution of the House and Senate. Defendants conceded that Section 2(b) requires a revenue estimate, but argued that the Constitution “vests discretion to set this estimate exclusively in the General 10 Assembly.” (C82). They also conceded that the General Assembly did not adopt any revenue estimate in connection with HB 40. No revenue estimate was adopted by both the Senate and the House. (C78-79, 85). Further, 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. Those appropriations, which cover the fiscal year from July 1, 2017 to June 30, 2018, did not account for or include amounts to support HB 40’s tens of millions in new spending. (C874; Am. Comp., paras. 41-42). And in fact, there are no funds available for HB 40, as the appropriations in SB 6 are reported to be already approximately $1.7 billion greater than actual expected revenues. See, e.g., Governor’s Office of Management and Budget, Illinois Economic and Fiscal Policy Report (Oct. 12, 2017), https://www.illinois.gov/gov/ budget/Documents/Economic%20and%20Fiscal%20Policy%20Reports/FY%202017/Eco nomic_and_%20Fiscal_%20Policy_%20Report_10.12.17.pdf. (C874; Am. Comp., paras. 44). A. Payments Pursuant To HB 40 Would Violate Article VIII, § 2(b) of the Illinois Constitution. Article VIII, § 2(b) of the Illinois Constitution of 1970 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 11 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. (C873; Am. Comp., paras. 41-44). 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.” The Circuit Court dismissed Count I of Plaintiffs’Complaint, pursuant to Section 2-619(a)(9) of the Code of Civil Procedure, accepting Defendants’ contention that Plaintiffs’ challenge to payments pursuant to HB 40 raises political questions which the Court was unable to address without violating the separation of powers between the judiciary and the legislature. (R70). Defendants maintained that three of the criteria recognized as supporting a finding that an issue presents a nonjusticiable political question are present in this case. (C81-90, 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 210-11. 12 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. Before the Circuit Court, Defendants argued that Plaintiffs’ constitutional challenge raises a political question 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.” (C83). Contrary to Defendants’ characterization, however, Plaintiffs 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. (C873, 877; Am. Comp., paras. 43, 62). Defendants conceded 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. (C78-79, 85). 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 did not challenge “how [the General Assembly] estimates available funds” (C83), they alleged that the General Assembly failed to make any estimate at all, contrary to its admitted constitutional duty to do so. Under such circumstances, no political question is implicated. Where the claim is that the legislature has entirely failed to perform a non-normative constitutional duty it is the obligation of the courts to enforce the Constitution. 13 As the Court explained in Rock v. Thompson, 85 Ill.2d 410, 418 (1981), “It is the duty of the judiciary to construe the Constitution and determine whether its provisions have been disregarded by the actions of any of the branches of government. While this court cannot exercise legislative powers … the judiciary has always had the right and duty to review legislative acts in light of the Constitution.” [Citations omitted throughout.] Quoting from its earlier decision in Donovan v. Holzman, 8 Ill.2d 87, 93 (1956), in Rock the Supreme Court reiterated, “‘The mere fact that political rights and questions are involved does not create immunity from judicial review. (Citations.)’” Id. In Rock, the Supreme Court addressed whether the Governor complied with the constitutional directive “that he shall convene the Senate to elect from its membership a President of the Senate as presiding officer.” Rock, 85 Ill.2d at 416. The Court rejected the argument that it lacked jurisdiction to address the issue because doing so would require it to enter the sphere of the legislature and to violate the separation of powers. Instead, the Court found that “the doctrine of separation of powers does not prevent the court from ascertaining compliance with or mandating performance of constitutional duties.” Rock, 85 Ill.2d at 417. This case presents an analogous issue; whether the General Assembly (which, by definition is comprised of both the House and Senate) violated Section 2(b) by failing to adopt any revenue estimate. Contrary to Circuit Court’s conclusion, no issue is raised regarding the sufficiency of the process employed by the General Assembly to adopt a revenue estimate since it was undisputed that the House never used any procedure or process to adopt any revenue estimate. The circumstances presented in this case, where the court was asked to decide whether the legislature wholly failed to perform a non-normative constitutional 14 obligation, are far different from those presented in cases where the courts have found that they are prohibited from determining whether the legislature has sufficiently performed a normative obligation, such as providing for a “high quality” free public education. The courts have found that such determinations of “quality” of education rest exclusively within the sphere of the legislature. See Committee for Educational Rights v. Edgar, 174 Ill.2d 1, 24-25, 32 (1996). However, the courts have not hesitated to act when laws altogether violate the mandate of a free public education. See Elliot v. Board of Education, 64 Ill. App. 3d 229, 237-38 (1st Dist. 1978) (striking law that required payment for public education of handicapped children); People v. Moore, 240 Ill. 408, 412 (1909) (striking law that required parents to pay for high school education according to their ability to pay). The Supreme Court recognized a similar distinction in Donovan v. Holzman, 8 Ill.2d 87 (1956). In Donovan, the Court recognized its power “to strike down an apportionment act which is violative of the clear requirements of the constitution.” Relying on the U.S. Supreme Court’s decision in Marbury v. Madison, 5 U.S. 137 (1803), and other authorities, the Court stated, “While we cannot exercise legislative powers or compel their proper action, the judiciary has always had the right and duty to review all legislative acts in the light of the provisions and limitations of our basic charter. The mere fact that political rights and questions are involved does not create immunity from judicial review.” Donovan, 8 Ill.2d at 93. In Donovan, the Court distinguished between its ability to determine “‘whether the principle of compactness of territory has been applied at all or not, and whether or not the nearest practical approximation to perfect compactness has been attained.’” The Court concluded: “‘The first is a question which 15 the courts may finally determine; the latter is for the legislature.’” Id. As discussed above, contrary to the conclusion reached by the Circuit Court, Plaintiffs alleged the General Assembly failed to make any revenue estimate—not that it failed to follow an appropriate procedure in adopting a revenue estimate (since it was undisputed that the House did not employ any procedure to adopt a revenue estimate) or that the General Assembly failed to adopt a substantively adequate revenue estimate. This utter abdication of the General Assembly’s constitutional obligation pursuant to Section 2(b) does not present a non-justiciable political question, even though it may relate to political rights and questions, but a question well within the “duty of the judiciary to construe the Constitution and determine whether its provisions have been disregarded by the actions of any of the branches of government.” Rock, 85 Ill.2d at 418. The decisions of other jurisdictions also recognize that a political question is not implicated where the legislature has failed, in any respect, to perform its constitutional duty. In Seymour v. Region One Bd. of Educ., 803 A.2d 318, 320 (Conn. 2002), the Connecticut Supreme Court considered a justiciability challenge on the same grounds advanced by Defendants here, and that Court rejected it, just as this Court should. In Seymour, the plaintiffs sought the invalidation of a statutory taxing formula, and defendants argued that adjudication of the issue would violate the political question doctrine. The Connecticut Supreme Court rejected that argument, noting that plaintiffs sought, among other relief, a declaration that the statute was unconstitutional, which was well within the purview of the Court: [W]e cannot conclude that, in deciding the merits of the plaintiffs’ constitutional claim, the courts would be inextricably involved in making an initial policy determination of a clearly nonjudicial, discretionary nature. Whenever a court engages in the process of determining whether a 16 statute violates the constitution, matters of policy admittedly enter into the analysis. That does not mean, however, that, in applying the appropriate constitutional standards in the present case, we would be required to make some ‘initial policy determination of a kind clearly for nonjudicial discretion . . . .’ Nielsen v. State, supra, 236 Conn. at 7. We see nothing in the plaintiffs' claim of unconstitutionality, moreover, that would, if we were to undertake to decide it or if it were found to be meritorious, involve the courts in expressing a lack of due respect for coordinate branches of government. Of course, deciding that a statute is unconstitutional, either on its face or as applied, is a delicate task in any event, and one that the courts perform only if convinced beyond a reasonable doubt of the statute's invalidity. See Hammond v. Commissioner of Correction, 259 Conn. 855, 876, 792 A.2d 774 (2002). That alone does not mean, however, that, if such a result must be reached on the facts and the law, such a declaration expresses lack of due respect for the legislative branch. Performing such a task simply exemplifies the fundamental judicial burden of determining whether a statute meets constitutional standards. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803). Seymour, 803 A.2d at 325-26. Likewise, here, Plaintiffs seek the invalidation of HB 40 on constitutional grounds; they are not asking the judiciary to venture into policy-making. 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. The Circuit Court apparently accepted Defendants’ argument that Plaintiffs’ claim implicates a political question 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. (C82-89). The erroneous premise of that 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 17 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. Before the Circuit Court, although Defendants admitted 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)”), Defendants argued that the General Assembly was not required to adopt a (or adopt a modified) revenue estimate by joint resolution. (C84-85).5 Although unclear, Defendants appeared to claim that the House and Senate could somehow adopt a revenue estimate through some action other than a joint resolution, although they failed to state what that action might be and failed to argue that the General Assembly in fact did so. Any suggestion by Defendants that the Senate’s passage of Senate Joint Resolution 42, a resolution upon which the House never acted, was sufficient to satisfy the requirements of Section 2(b), would be patently meritless. 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.” [Emphasis added.] 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 5 Contrary to Defendants’ claim, Plaintiffs did not “allege that the General Assembly is required to adopt COGFA’s estimated revenue report.” (C84). 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).” (C877; Am. Comp., para. 62). 18 Assembly” consists of “a Senate and a House of Representatives elected by the electors from 59 Legislative Districts and 118 Representative Districts.” Accordingly, a claim that, without any action by the House, the General Assembly adopted a revenue estimate because the Senate passed Senate Joint Resolution 42, violates the constitutional definition of what constitutes the “General Assembly.” The General Assembly, that is, the House and the Senate together, never took any form of joint action that could conceivably be construed to constitute the adoption by the General Assembly of a revenue estimate. Defendants’ argument that revenue estimate issue raises a political question because there are no “clear standards” to evaluate the propriety of the process by which it must fulfill its duty to make a revenue estimate not only ignores Section 2(b), but also disregards COFGA Section 4(a). As discussed above, the Illinois Constitution clearly mandates that, whatever process may be used, it requires action by the General Assembly, i.e., both the House and the Senate, and it is undisputed that never occurred with respect to a revenue estimate for HB 40. Moreover, COFGA Section 4(a) sets forth “clear standards.” COFGA was enacted by the Legislature as the means by which it would comply with Section 2(b). It provides, in relevant part: The House and Senate by joint resolution shall adopt or modify such estimates [by the Commission on Government Forecasting and Accountability (“Commission”) reflecting updated revenue figures based on the latest available information] 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. 19 There is nothing the least bit unclear about the standards the Legislature set for itself in COFGA Section 4(a). Those standards unequivocally require “the House and the Senate by joint resolution” to adopt or modify the estimates by the Commission. Before the Circuit Court, Defendants maintained 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. In addition to being wrong, that argument misses the point. As a purported hallmark of a political question, Defendants claim that no clear standards exist to evaluate the process used by the General Assembly to adopt a revenue estimate. Accordingly, the question is not whether “shall” used in the statute is “mandatory” but whether COFGA Section 4(a) provides “clear standards.” It does. It requires the House and the Senate by joint resolution to either adopt the Commission’s revenue estimate or to adopt a modified revenue estimate. In this case, the House and Senate did not adopt by joint resolution (or otherwise) any revenue estimate. Notably, Defendants’ statutory interpretation argument is erroneous in any event. 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 permissive, with the question of whether the statute is mandatory or directory. 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 20 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 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- 21 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 relied upon by Defendants in support of its argument that “shall” as used in COFGA Section 4 is not mandatory, People v. Delvillar, 235 Ill.2d 507, 516 (2009), provides an example in which the mandatory-directory, rather than the mandatory-permissive 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 Assembly’s Fiscal Year 2018 appropriations exceeded its estimate.”6 6 However, Defendants had no difficulty determining the relevant appropriations amount in their recitation to this Court of the Fiscal Year 2018 Budget process. (C77-79). 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. 22 (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. Moreover, Defendants not only conceded that Section 2(b) imposes upon the General Assembly both a duty to estimate available funds but also a duty to appropriate within that estimate. See C83 (“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 Section 2(b) 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, 490-91 (1971) (“Section 2(b) of article VIII . . . provid[es] that the legislature must limit its annual 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 C751-752 (“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 23 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). 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. (C873; Am. Comp., paras. 41-42); 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. Before the Circuit Court, Defendants also argued, “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.” (C87). As previously discussed, however, 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 24 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 has not even been enacted) and prior to any appropriation by the General Assembly, does not establish that the General Assembly has made an appropriation for that program consistent with the requirements of Section 2(b). Defendants also asserted that Plaintiffs were attempting to question HFS’s management of its own appropriations to adequately fund HB 40 (C88), apparently suggesting that, this courts may disregard the failure to comply with Section 2(b) or COFGA on the basis that HFS has discretion regarding how to allocate resources. HFS’s 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’s 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. The factual basis of Defendants’ political question argument is demonstrably wrong and the Circuit Court erred in accepting it. Contrary to Defendants’ claim that, “the decision about which services to fund and at what level presents a discretionary decision left to the political branches” (C88-89), 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. Before the Circuit Court, Defendants additionally argued that Plaintiffs’ claims raise non-justiciable political questions because, in independently resolving the issues 25 raised, the courts 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.” (C89). Plaintiffs, however, never asked the courts to undertake the power or the duties imposed upon the General Assembly by Section 2(b). Instead, they asked for a determination of “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 v. Carr, 369 U.S. 186, 210-11 (1962). 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). (C89). Examples abound of courts performing this role in the context of state budget determinations. See, e.g., Flast v. Cohen, 392 U.S. 83 (1968) (holding that taxpayer may challenge congressional action under the Taxing and Spending Clause that violates a limitation on the exercise of that power); Burgos v. State, 118 A.3d 270, 291-92, 293 (N.J. 2015) (holding, in reference to a state statute that purported to circumvent the constitutionally-prescribed annual appropriations process, that “[t]he Legislature and 26 Governor were without power, acting without voter approval, to transgress the Debt Limitation Clause and, similarly, the corresponding Appropriations and other budget clauses of the State Constitution”); Ehrlich v. Perez, 908 A.2d 1220, 1233 (Md. 2006) (upholding a preliminary injunction requiring the state to fund a certain program on the grounds that defunding the program violated recipients’ equal protection rights; the court rejected the argument that “the Circuit Court lacked the authority to issue a preliminary injunction requiring expenditure of State funds . . . that were not appropriated in the FY 2006 Budget”); Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991) (invalidating Governor’s restructuring of appropriations for failure to comply with constitutional requirements; foster children plaintiffs had standing as taxpayers); Town of Brookline v. Governor, 553 N.E.2d 1277 (Mass. 1990) (holding that court had power to review authority of Governor to impound funds); Bruneau v. Edwards, 517 So.2d 818, 824 (La. Ct. App. 1987) (affirming judicial power to review legislators’ challenge to constitutionality of Governor’s revision of budget); Michigan Ass’n o f Counties v. Dep’t of Mgmt. & Budget, 345 N.W.2d 584 (Mich. 1984) (reviewing Governor’s power to reduce funds sent to local governments under a balanced budget provision in the state constitution); Wein v. New York, 347 N.E.2d 586 (N.Y. 1976) (finding that taxpayers had standing to seek a declaratory judgment that the issuance of anticipation notes to New York City violated the state constitutional balanced budget requirement; the court held that the state could grant the notes so long as they would be paid by the end of the fiscal year); Boneno v. State, 284 S.E.2d 170, 170-71 (N.C. 1981) (deciding whether a statute violates the state constitution’s balanced budget provision); In re County of Oneida v. Berle, 404 N.E.2d 133, 135 (N.Y. 1980) (per curiam) (holding that executive branch 27 officials did not have the constitutional authority to impound funds after they had been appropriated by the state legislature); Bishop v. Governor of Md., 380 A.2d 220, 223 (Md. 1977) (finding the question of the constitutionality of particular fiscal year’s budget to be moot but noting that “if it does [recur], there should be no difficulty in having it passed upon as a live issue”). Indeed, many of these courts have made these constitutional determinations while, in the same decisions, professing deference to the Legislature on matters of appropriation. See, e.g., Camden v. Byrne, 411 A.2d 462, 468, 470 (N.J. 1980) (“New Jersey courts have consistently adhered to the principle that the power and authority to appropriate funds lie solely and exclusively with the legislative branch of government,” and yet “[t]here cannot be the slightest doubt that the above-quoted provision of our Constitution firmly interdicts the expenditure of state monies through separate statutes not otherwise related to or integrated with the general appropriation act governing the state budget for a given fiscal year. . . . Its terms must therefore be given full and complete effect in accordance with their clear and obvious intent.”). There is no tension between deferring to the Legislative Branch on questions of funding policy while also performing the judiciary’s appropriate role of ensuring that the other two branch’s funding practices comport with the requirements of the State Constitution. II. The Circuit Court Erred In Dismissing Plaintiffs’ Claim That Implementing HB 40 Prior to June 1, 2018, Violates the Illinois Constitution, article IV, section 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 28 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 maintain the General Assembly as a part-time legislature, motivating legislators to conclude their work by May 31st, 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 IL 120729, ¶ 22 (“The Effective Date Act helps to ensure that parties have sufficient opportunity to conform their conduct to the law . . . .”). The General Assembly’s work on HB 40 was not concluded by May 31, 2017— and would not be until its passage on September 25, 2017—and the bill specified no earlier effective date. Therefore it cannot take effect prior to June 1, 2018, under Article IV, section 10 and 5 ILCS 75/2. Nevertheless, the Circuit Court found the law took effect on January 1, 2018. That conclusion 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 sleightof-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. (C874; Am. Comp., paras. 46-47). The same day, Senator Don Harmon, who had voted in favor of HB 40, filed a motion to reconsider the vote. (C874; Am. Comp., para. 47). Senator Harmon did not withdraw that motion to reconsider until September 25, 2017, whereupon HB 40 passed out of the Senate and was 29 sent to the Governor, who signed it on September 28, 2017. (C874; Am. Comp., paras. 48-49). The date of HB 40’s passage out of the Senate to the Governor’s desk was September 25, 2017. (C874-875; Am. Comp., paras. 50-54). Accordingly, the Illinois General Assembly website identifies September 25, 2017, as the date that HB 40 “Passed Both Houses.”7 (C875; Am. Comp., para. 54). 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 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, with respect to HB 40, 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)). 7 Bill Status, HB 40, http://www.ilga.gov/legislation/billstatus.asp? DocNum=40&GAID=14&GA=100&DocTypeID=HB&LegID=99242&SessionID=91. 30 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. C. The Reasoning Adopted By The Circuit Court Would Put the Legislature in Perennial Violation of the Illinois Constitution’s Presentation Clause. 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.” No one has suggested that HB 40 could have been presented to the Governor within 30 calendar days of May 10, 2017, which Plaintiffs want to treat as the bill’s passage date. In fact, if May 10th 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& 31 GAID=14&GA=100&DocTypeID=SB&LegID=98844&SessionID=91&SpecSess=0. Before the Circuit Court, Defendants conceded—as their position compelled 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 they argued that that shouldn’t invalidate the bill. They correctly noted that a violation of Section 9(a) is subject to “judicial enforcement,”8 to force the sending of a passed bill to the governor. (C96). Their argument missed 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 10th) as the date of HB 40’s “passage” but rather used the date on which it actually passed out of the General Assembly (September 25th). Under Defendants’ logic, which the Circuit Court evidently adopted, the Senate could be haled into Court every time a bill is held subject to a motion to reconsider for more than 30 days. Moreover, if May 10th 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). Thus, 8 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 still subject to a motion to reconsider, for such a bill has not met “the procedural requirements for passage.” 32 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 Have Not Rebutted Any of the Above Authorities. Defendants did not discredit or rebut any of the above arguments before the Circuit Court. They did not—because they could not—deny that, as a practical matter, HB 40 did not pass from the Legislature to the Governor until September 25, 2017. They did not deny that Mason’s Manual’s parliamentary rules apply in the Illinois Senate, nor that those rules dictate that a motion to reconsider postpones the legal effect of a vote until after the motion has been resolved. See C93. 9 And they did not deny that their proposed understanding of “passage date” would put the Senate’s practices in flagrant violation of the Illinois Constitution’s 30-day presentation requirement. Despite their lack of counter-authority, though, Defendants still maintained (erroneously) that HB 40 “‘passed’ on May 10, 2017, and that its effective date was therefore January 1, 2018.” (C91). The Circuit Court apparently agreed. E. Contrary To The Circuit Court’s Conclusion, Withdrawal Of The Motion To Reconsider Was The “Final Legislative Action Prior To Presentation To The Governor.” Defendants argued to the Circuit Court that Mason’s Manual’s parliamentary rules governing motions to reconsider are inconsistent with the Effective Date of Laws Act’s “final legislative action” requirement. See C91-92. That argument lacks merit. Mason’s Manual dictates 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 Mason’s Manual §§ 737(5), 737(6). In such a case, the resolution of the 9 Note that, by failing to identify any Senate rule to the contrary, Defendants effectively concede that Mason’s Manual’s parliamentary rules apply. See Ill. Sen. R. 12-2. 33 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. See 5 ILCS 75/2. There is nothing contradictory, or even difficult to reconcile, about Mason’s Manual and the Effective Date of Laws Act. 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 argued should trump 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.” (C93). 10 Defendants misunderstand Mulligan. According to their argument to the Circuit Court, the Mulligan Court enumerated four candidates for the Legislature’s “final legislative action” that could determine a bill’s passage date, and that list (a) is exhaustive, and (b) supersedes any other legal authority on what a “final legislative action” could be. What Defendants neglected to acknowledge 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 10 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 estimate revenues and appropriate funds with that estimate—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 a question of legislative procedure. (C930). 34 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 not a ministerial employee, but a legislator—he is the Senate President Pro Tempore. 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; 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 irrelevant. 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 to present the bill within the thirty-day period, and it is an administrative act with no discretion.”). Senator Harmon’s use of the motion to reconsider was 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 35 or practically possible to claim that the withdrawal of the motion was not “the last legislative act necessary so that [the bill] could become law.” Mulligan, 123 Ill.2d at 314. Defendants offered no reason or authority to the contrary to the Circuit Court; they simply noted 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 it didn’t discuss them has zero significance. Before the Circuit Court, Defendants also floated the alternate 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.” (C92). That claim is even less meritorious 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 expanded the argument, claiming that the “final legislative act” must “result in a vote or change to the legislation.” (C92). But they offered no authority for applying that principle in this case either. Rather, they cited three cases that all consider what to use as the passage date of a bill after it has been vetoed. See C93 (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)).11 Those cases are 11 Defendants note that the Illinois Constitution requires “final passage of a bill shall be by record vote.” See C94. 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 dispute is over when that vote took effect. 36 inapposite. The question in all of 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. Contrary to the Circuit Court’s ruling, 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 Harmon’s motion to reconsider had not been withdrawn but instead called for a vote, 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), and the events of May 10th would be considered—as they should be—just another step along the way to the bill’s passage. 37 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 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.”). That could only be true if, before Sen. Harmon withdrew the hold, HB 40 had not yet passed. There is no way to square the Circuit Court’s definition of “passed” with the Illinois Constitution, governing Senate Rules, and common sense. F. The Definition of “Passed” Accepted By The Circuit Court Violates A Principal Purpose of Section 10: To Force The General Assembly to Complete Its Work By May 31. Given the purpose of Article IV, Section 10—to provide a cut-off date for the General Assembly to conclude its work—this 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; see also C21-24 (quoting legislative history of Section 10, 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 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.). 38 In other words, 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 31st. But the opposite is true in cases like the one at bar. Acceptance of the Circuit Court’s holding 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 31st, thereby escaping the constitutional penalty for their delinquency. That is precisely what happened in this case, and the Circuit Court’s ruling sanctions that tactic for circumventing Article IV, Section 10, going forward.12 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 or after January 1, 2018, and the Governor signed it the same day, Defendants would treat HB 40 just as if the General Assembly had assigned an immediate effective date to the measure. Yet, when members of the General Assembly vote on a bill without an effective date, they do so with the knowledge that there will be at least a seven-month notice period for the public—from May 31 to the following January 1—between final passage by both houses and actual effectiveness of a legislative measure. The presence or absence of that notice period may bear on the decisions of individual legislators in deciding whether or not to support a 12 Defendants argued to the Circuit Court 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 longstanding 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. 39 particular bill. Defendants’ and the Circuit Court’s definition of passage thus strikes directly at the recognized notice purpose of the Effective Date of Laws Act and Article IV, Section 10 of the Constitution. See Howard, 2016 IL 120729, ¶ 22. The facts of Mulligan, Allphin, and Shumpert make them minimally helpful as analogs to this case, and it is telling that Defendants could come up with no more relevant case to support their argument. But Mulligan, at least, does offer a test for a “final legislative action” that can be applied in any case, including this one: “the last legislative act necessary so that [the bill] could become law.” See Mulligan 123 Ill.2d at 313. In this case, for several months before its ultimate passage, Harmon’s motion to reconsider was the only thing standing between HB 40 and becoming law. The withdrawal of that motion permitted the Senate’s May 10, 2017 vote to take effect. That was “the last legislative act necessary so that [HB 40] could become law,” id., and it occurred on September 25, 2017. Therefore, the Circuit Court erred in dismissing Plaintiffs’ claim that according a January 1, 2018 effective date to HB 40 violates Article IV, §10 of the Illinois Constitution and the Effective Date of Laws Act (5 ILCS 75/2). III. This Court Should Grant Plaintiffs Injunctive Relief. A. Plaintiffs Have Clearly Ascertainable Rights In Need Of Judicial Protection. Plaintiffs are Illinois taxpayers or are representing their members who are Illinois taxpayers. “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 (permitting taxpayers to bring suit to “restrain and enjoin the disbursement of public funds by any officer or officers of the State government”). Public 40 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. (C871-872; Am. Comp., paras. 32-39). But Plaintiffs 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 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. B. Absent Injunctive Relief, Plaintiffs And All Other Illinois Taxpayers Will Suffer Irreparable Harm. Before the Circuit Court, Defendants admitted that they and their staff intended to begin processing reimbursements for elective abortions and other new procedures pursuant to HB 40, beginning on January 1, 2018. (See C74-75, 78). Therefore, at the time of this appeal, Defendants’ misuse of public funds, whether in administering an unfunded and premature program or actually paying for elective abortions and other 41 procedures, has already begun and is ongoing. Unless this Court enjoins and restrains Defendants from disbursing further public funds of the State of Illinois, Plaintiffs will continue to suffer immediate and irreparable injury, in that (a) Felicia Norwood, Director of the Department of Healthcare and Family Services, will continue to disburse State monies through the Illinois Medicaid and related programs to pay for elective abortions and other procedures that were previously unfunded but are newly allowed or required pursuant to HB 40; (b) Michael Hoffman, Acting Director of the Department of Central Management Services, will continue to disburse State monies through the Illinois Medicaid and related programs to pay for elective abortions and other procedures that were previously unfunded but are newly allowed or required pursuant to HB 40; (c) Susana Mendoza, State Comptroller, upon determining that public funds are due any person, will continue to direct Michael Frerichs, State Treasurer, to pay the amount due, as required by 15 ILCS 405/10.01; and (d) these substantial disbursements will continue to violate the Constitution and laws of the State of Illinois. C. 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 42 ability to stop the flow of money out of the treasury, not to recover it once sent. 735 ILCS 5/11-301, 11-303. D. Plaintiffs Have Demonstrated A Likelihood Of Success On The Merits. The material facts upon which Plaintiffs’ claims for relief are based are undisputed. As discussed supra at pp. 9-40, those facts establish, as a matter of law, the validity of Plaintiffs’ claims. Accordingly, Plaintiffs’ have demonstrated a likelihood of success on the merits. CONCLUSION For the foregoing reasons, this Court should reverse the Circuit Court’s December 28, 2017 Order dismissing Plaintiffs’ Complaint with prejudice and should enter a preliminary injunction enjoining the implementation and enforcement of HB 40. 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 CERTIFICATE OF COMPLIANCE I, Peter Breen, certify that the foregoing Brief of Plaintiffs-Appellants conforms to the requirements of Supreme Court Rules 341(a) and (b). The length of this brief, excluding the pages or words contained in the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is 42 pages or words. /s/Peter Breen Peter Breen Thomas More Society A public interest law firm 19 S. LaSalle, Ste. 603 Chicago, Illinois 60603 (312) 782-1680 pbreen@thomasmoresociety.org 4-18-0005 IN THE APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT SPRINGFIELD RIGHT TO LIFE; et al., ) ) Plaintiffs-Appellants, ) ) 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; and SUSANA ) MENDOZA, Comptroller of the State of Illinois, ) ) Defendants-Appellees. ) NOTICE OF FILING TO: Harpreet Khera Assistant Attorney General Office of the Attorney General 100 W. Randolph St. Chicago, IL 60601 hkhera@atg.state.il.us PLEASE TAKE NOTICE THAT on January 29, 2018, I filed with the Clerk of the Appellate Court, Fourth District, the Brief of Plaintiffs-Appellants and PlaintiffsAppellants’ Renewed Motion to Expedite Appeal, copies of which are served on you herewith. /s/Peter Breen One of the Attorneys for Plaintiffs-Appellants 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-Appellants 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-Appellants Bradley E. Huff Graham & Graham, Ltd. 1201 S 8th St Springfield, IL 62703 (217) 523-4569 Counsel for Plaintiff-Appellant Diocese of Springfield-in-Illinois STATE OF ILLINOIS ) ) COUNTY OF SANGAMON ) RE: Springfield Right to Life, et al. v. Felicia Norwood, et al., Appeal No. 4-18-0005 CERTIFICATE OF SERVICE Peter Breen certifies that he served the Brief of Plaintiffs-Appellants and Plaintiffs-Appellants’ Renewed Motion to Expedite Appeal upon: Harpreet Khera Assistant Attorney General Office of the Attorney General 100 W. Randolph St. Chicago, IL 60601 312-814-3553 hkhera@atg.state.il.us via email to the email address listed above on January 29, 2018, before the hour of midnight. Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. /s/Peter Breen Peter Breen Thomas More Society A public interest law firm 19 S. LaSalle, Ste. 603 Chicago, Illinois 60603 (312) 782-1680 pbreen@thomasmoresociety.org TABLE OF CONTENTS TO THE APPENDIX December 28, 2017 Docket Entry reflecting Defendants’ Motion to Dismiss Pursuant to 735 ILS 5/2-619.1 granted with prejudice and Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction denied..................................App. 1 Excerpt of December 28, 2017 Report of Proceedings................................App. 2 Verified Amended Taxpayer Complaint To Restrain And Enjoin The Disbursement Of Public Funds, filed December 29, 2017.............................................................................App. 8 Notice of Appeal, filed January 2, 2017......................................................App. 25 Common Law Record - Table of Contents..................................................App. 29 Reports of Proceedings – Table of Contents ...............................................App. 32