IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

THE AMERICAN FEDERATION OF STATE, )

COUNTY AND MUNICIPAL EMPLOYEES, )
AFL-CIO, COUNCIL 31, et al., )
)
Plaintiffs, )
)
v. ) Case No. 15 CH 475
)
BRUCE RAUNER, the Governor of the State of Illinois; )
MICHAEL HOFFMAN, Acting Director of )
Central Management Services; )
ILLINOIS DEPARTMENT OF CENTRAL )
MANAGEMENT SERVICES; and SUSANA A. )
MENDOZA, the Comptroller for the State of Illinois, )
)
Defendants. )

DEFENDANTS OPPOSITION TO MOTION TO PRESENT

ADDITIONAL AUTHORITY AND TO DISSOLVE PRELIMINARY INJUNCTION

The Attorney General has asked this Court to eliminate the July 10, 2015 Court Order

that has protected tens of thousands of Illinois State employees pay from the General

Assemblys refusal to meet its constitutional obligation to pass a balanced budget (the July 2015

Order). Defendants Bruce Rauner, Governor of the State of Illinois, Michael Hoffman, Acting

Director of Central Management Services, and the Illinois Department of Central Management

Services (collectively the State) oppose the Attorney Generals motion.1

Although the Attorney General focuses exclusively on the appropriations process,

numerous other legal grounds support paying state employees in the absence of specific

appropriations for state employee payroll. As described below, federal law requires the State to

pay its employees under the Fair Labor Standards Act, superseding state law. In addition,
1
Since the July 2015 Order was entered, Susanna Mendoza replaced Leslie Munger as Illinois
Comptroller. To date, Mendoza has refused to oppose the Attorney Generals current efforts to
stop employee pay. She is not a party to this Opposition.
1
roughly eighty federal court consent decrees direct the State to perform a wide range of services,

which tens of thousands of state employees must be paid to provide. Next, state employees must

be able to protect the health, safety, and welfare (including the economic well-being) of the

people under the States police powers. And finally, numerous legislatively-enacted commands

mandate that state agencies perform a wide variety of services and functions, operating as a

continuing appropriation of all funds necessary to provide them. Thus, even if the Attorney

General could demonstrate that no specific appropriations existed to pay state employees (a

factual matter that the Attorney General simply assumes to be true), the Attorney General would

be required (but completely fails) to specify which employees pay can be stopped despite the

above legal grounds for paying them.

For these reasons, or any combination of them, the Attorney General has not met her

burden to upset the status quo requiring that state employees continue to be paid in full. This

Court should therefore continue its July 2015 Order. In the alternative, this Court should reject

the Attorney Generals invitation to create an artificial emergency and instead should continue its

July 2015 Order until such time as it can oversee the fact-specific inquiry necessary to determine

which state services must be provided. In the event that the Court elects to follow this course,

the Attorney General should explain which employees she believes must be deprived of a

paycheck and which services she believes should no longer be provided to the people of this

State.

BACKGROUND

The July 2015 Order the Attorney General seeks to dissolve was entered as a result of a

lawsuit initially filed in July 2015 by Plaintiffs AFSCME and other labor unions. That suit asked

this Court to direct former Illinois Comptroller Leslie Munger to issue payments to state

2
employees in the absence of an appropriation by the state legislature. Plaintiffs alleged this

failure to appropriate impaired their State contracts. See ILL. CONST. art. I, 16. The Attorney

General opposed the unions motion, seeking instead to halt state worker pay. This Court

nevertheless allowed the Comptroller, through separate counsel, to argue in support of the

unions position.

The Court ultimately agreed that Plaintiffs had a constitutional right to be paid under their

impairment of contract theory and entered a temporary restraining order covering all State

employees. The Court also noted that the denial of the relief requested could expose the State

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

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

Restraining Order with Notice, No. 15-CH-475 at 3 (St. Clair Co. July 10, 2015). The Fifth

District Court of Appeals upheld the temporary restraining order and remanded with instructions

to set a date for a preliminary injunction hearing. Since then, the Attorney General has shown no

interest in moving this case forward. Instead, this Court entered an order on August 13, 2015

continuing the temporary restraining order until a final order is issued. On September 4, 2015,

Plaintiffs amended their complaint to add the Governor, the Illinois Central Management System

(CMS), and the Director of CMS as defendants in this suit. See Amended Verified Complaint

for Declaratory Judgment and Injunctive Relief, No. 15-CH-475 (St. Clair Co. Sept. 4, 2015).

The amended Count I alleges Plaintiffs impairment of contract claim against all Defendants. Id.

at 18.

The Attorney General has now moved to dissolve the July 2015 Order in this case,

effective February 28, 2017. She asserts that the impairment of contract basis for the July 2015

Order is no longer valid under a decision issued by the Illinois Supreme Court in March of last

3
year, Illinois v. AFSCME, Council 31, 2016 IL 118422 (2016). However, the need to pay state

employees in the absence of an appropriation is not limited to the impairment of contract theory

resolved by the Supreme Courts decision. The issues flagged in this Opposition must be

considered before taking the extreme and irreversible course urged by the Attorney General.

ARGUMENT

I. The Federal Fair Labor Standards Act Requires State Employees To Be Paid

The first reason this Courts July 2015 Order should be continued is the federal Fair

Labor Standards Act, 29 U.S.C. 201, et seq. (FLSA). Subject to certain exemptions, see 29

U.S.C. 213, that statute requires employers to pay employees a minimum wage for hours

worked. See, e.g., 29 U.S.C. 206. See also, e.g., Council 13, Am. Fed. Of State, County &

Min. Employees, AFL-CIO v. Rendell, 986 A.2d 63, 81 (Pa. 2009). The FLSA also requires

payment of 150 percent of an employees regular hourly wage for all time in excess of forty

hours. 29 U.S.C. 207(a). The FLSA applies to State employees, see 29 U.S.C. 203(d) &

(e)(2)(C) (defining employer and employee under FLSA); Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528, 556-7 (1985) (FLSA applies to state and local governments),

and Illinois has waived its sovereign immunity against suits brought under the FLSA by its

employees. See 745 ILCS 5/1.5(b) (waiving sovereign immunity for FLSA suits).

The FLSA trumps state law, including the Illinois Constitution, rendering the States

appropriations clause irrelevant. The United States Constitutions Supremacy Clause declares in

relevant part that the Laws of the United States . . . shall be the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding. U.S. CONST. art. IV, cl. 2. Thus the federal Constitution

explicitly contemplates that federal law will supersede state constitutions and directly orders

4
state judges to follow federal law when there is a conflict. See, e.g., New York v. United States,

505 U.S. 144, 159 (1992). As a result, even in the absence of an appropriation during a budget

crisis, the State must pay at least minimum wage (and overtime, as needed) to any employee

covered by the FLSA. White v. Davis, 68 P.3d 74, 79 (Cal. 2003); Council 13, 986 A.2d 63.

None of this is controversial. In fact, the Attorney General in filings in other cases has

admitted the States obligation, stating in a Cook County case that [t]he Supremacy Clause . . .

requires the State to comply with the FLSA, regardless of state laws requiring an appropriation.

See Exhibit A at 12, Verified Motion for Temporary Restraining Order and Preliminary

Injunction, People of the State of Illinois v. Munger, No. 2015-CH-10243, at 12 (Cook Co.

Circuit Court July 2, 2015).

The only way to ensure compliance with the FLSA is to continue processing payroll the

same way the State has all along. As Defendant CMS has explained in documents relied upon by

the Attorney General herself in other proceedings, technical and practical difficulties prevent

timely adjustments to the payroll system to produce an FLSA-compliant payroll that pays only

the FLSA minimum. See Exhibit B at 10-11, Exhibit A to Complaint, People of the State of

Illinois v. Munger, No. 2015-CH-10243 (Cook Co. Circuit Court July 1, 2015) (letter of then-

CMS General Counsel Michael Basil dated June 30, 2015). And even if CMS could prepare

such payroll, it would wreak havoc on the pension contributions, mortgage payments, and

numerous other potential deductions that all assume full payroll. See id.

Because of these facts, the only choice the State faces is between violating federal law

(because limiting compliance to the FLSAs minimums is impossible as a practical matter) or

complying with federal law by paying employees in full (because that is the only reasonable way

the State can currently comply with the FLSA). There is no prohibition in the FLSA with paying

5
employees more than federal minimum wage. That is, after all, how the State complies with the

FLSA every dayby paying employees more than the federal minimum wage and compensating

them for earned overtime at wage rates the State sets. There is no constitutional, statutory, or

case law authority to claim that the Supremacy Clause excuses compliance with federal law

when compliance with just the minimum requirements of that law is impossible. Instead, the

Supremacy Clause requires the State to satisfy the FLSA. The State can only do so by paying its

employees in full. It therefore must do so.

Despite her current argument, the Attorney General has previously recognized that state

law does not forbid the State from making payments above the minimum required under the

FLSA. In 2007 during a prior budget impasse, the Attorney General approved an agreed order

that provided the same relief that this Courts July 2015 Order provides. See Ex. C, Agreed

Order, AFSCME, Council 31 v. State of Illinois, No. 07-MR-52 (Christian Co. Aug. 10, 2007).

Though the order stated that it was not precedential, as an officer of the court, the Attorney

General could not have agreed to that solution if she believed it to be unconstitutional. After all,

the dictates of the Constitution do not change just because the Attorney General now wishes to

cut off state employee pay rather than protect it. Nor can it be the answer that the Attorney

General thought it politically expedient to agree to something in 2007, only to change her mind

in 2015 and 2017 (the Attorney General was silent on this argument in 2016).

While the Attorney General is likely to try to walk back her position from ten years ago

by claiming that she only agreed to continue payments in the absence of an appropriation

because she believed then that a budget deal was imminent, that response would be irrelevant.

The argument amounts to an assertion that brief violations of law are proper. If the

appropriations clause prohibits state employees from being paid, as the Attorney General claims

6
today, then the Attorney General herself agreed to violate the appropriations clause in 2007. The

far better position is that all employees are entitled to be paid in full today to ensure compliance

with the FLSA, just as they were in 2007.

II. State Employees Must Also Be Paid for Additional, Independent Reasons

While the Court need look no farther than the FLSA to continue its July 2015 Order in

full, state employees must also continue to be paid for several additional, independent reasons.

Federal consent decrees, the States responsibility to protect the health, safety, and welfare of its

citizens, and numerous legislative commands require state employees to perform specific

governmental functions. Employees who provide those services must be paid. The current court

order ensures compliance with all these functions.

What follows briefly describes these alternative arguments for paying state employees.

For the Attorney General to prevail in upsetting the status quo created by this Courts order, she,

at the very least, needs to respond to all of them and to specify which employees should be sent

home. That, she fails to do.

a. Numerous Federal Consent Decrees Require Services that State Employees

Must Be Paid to Provide

State employees must be paid to comply with federal consent decrees. Over the years,

the State of Illinois has entered into numerous consent decrees to resolve litigation against it in

the federal courts. Approximately eighty consent decrees are in place today. Many address

broad issues, like the rights and treatment of individuals with developmental and physical

disabilities and mental illness, health care and education for juvenile offenders, and health care

for children in Cook County. Some effectively cover the operations of entire state agencies. For

instance, since 1991 the consent decree in B.H. v. Sheldon, 88 C 5599 (N.D. Ill.), has controlled

virtually all operations at the Illinois Department of Children and Family Services, dictating the

7
food, shelter, clothing, health services, and mental health care received by children in the Illinois

foster care system.

The Attorney General has previously admittedas she mustthat annual appropriations

are not necessary to make payments required to comply with federal consent decrees because

they constitute federal law for the purposes of the Supremacy Clause. See Verified Complaint

for Declaratory and Injunctive Relief, People of the State of Illinois v. Munger, No. 2015-CH-

10243, 23-24 (Cook Co. July 1, 2015) (Federal consent decrees . . . are federal law for the

purposes of the Supremacy Clause and thus the Comptroller must authorize payments

necessary to comply with federal consent decrees in the absence of an annual appropriation.).

However, because of the number and breadth of these decrees, it is not possible to quickly

identify the entire list of employees who are necessary to ensure compliance. Any reduction in

services in an agency covered by a consent decree could cause care to fall below an acceptable

level, violating federal law. The only way to ensure the State is complying with all consent

decrees is to continue to pay all employees in agencies covered by such decrees.

The Attorney General failed to come forward with any argument to explain why the

Comptroller should stop paying employees necessary to comply with numerous consent decrees.

b. The State Must Also Provide Services to Protect the Health, Safety and
Welfare of the People Under the States Police Powers

State employees must also be paid to provide services that protect the health, safety, and

welfare of the people of Illinois pursuant to so-called police powers. Police powers make

intuitive sensefor instance, State troopers must patrol roads, prisons must operate, health and

safety inspectors must ensure safe operation of everything from food processing facilities to rail

lines. The police power is an attribute of sovereignty in every government that allows and

requires such government to promote the well-being of the people. See Sherman-Reynolds, Inc.

8
v. Mahin, 47 Ill.2d 323, 326 (1970); cf. also Bond v. United States, 134 S. Ct. 2077, 2086 (2014)

(States have broad authority to enact legislation for the public goodwhat we have often called

a police power.). While police powers certainly include public health and physical safety,

[i]t is settled, too, that the police power may be exercised to promote the economic welfare of

the State, its communities and its citizens. Sherman-Reynolds, 47 Ill. 2d at 326. Under the

Illinois Constitution, the Governor has the supreme executive power of the State of Illinois. ILL.

CONST. art. V, 8. As a result, he is responsible for ensuring that the States police power is

exercised in a responsible fashion. But see In re Pension Reform Litigation, 2015 IL 118585,

81 (2015) (Although the police powers of the legislature are broad and far-reaching, . . . that

exercise must not conflict with the Constitution.).

Numerous state functions fall under the police power. While a full analysis of the

contours of power would require extensive court proceedings, some categories of employees

likely covered include Illinois State Police and Department of Corrections officers, juvenile

justice employees, Department of Children and Family Services employees, Emergency

Management Agency employees, and State Fire Marshal employees. These and similar agencies

perform jobs every day that protect the safety and rights of the people of Illinois. Any

interruption in their service presents a threat to the people they protect. It is also critical to

remember that front-line employees, for instance Illinois State Police officers, cannot act without

the support and back-office staff who enable them to perform their necessary roles. And many

state employees are responsible for maintaining state property. If their work is interrupted, the

State will be unable to protect its assets and will incur costs of repairing any damage that occurs.

It is necessary for the safety of the people of Illinois to continue paying these employees their

full salaries.

9
 The Attorney General failed to come forward with any argument to explain why the

Comptroller should stop paying employees necessary to enforce the States police powers.

c. State Employees Must Also Be Paid to Provide Functions Mandated by State

Law

Finally, there are many statutes that function as continuing appropriations by mandating

the State to perform specific services. Employees who provide those services must continue to

be paid. As the Supreme Court recognized long ago in interpreting an appropriations clause

analogous to the present one, [w]here a statute categorically commands the performance of an

act, as much money as is necessary to pay the command may be disbursed without explicit

appropriation. Antle v. Tuchbreiter, 414 Ill. 571, 578-9 (1953); see also People ex rel. Kirk v.

Lindberg, 59 Ill.2d 38, 40 (1974) (under Constitution of 1970 [i]t is common ground between

the parties that neither under the Constitution of 1870 nor under the . . . Constitution of 1970

have all State funds been expended pursuant to appropriations). Again, the Attorney General

has admitted as much, at least in principle. She has stated that [p]ayments made pursuant to

continuing appropriations . . . do not require an annual appropriation and may be authorized by

the Comptroller in the absence of an annual appropriation. See Verified Complaint for

Declaratory and Injunctive Relief, People of the State of Illinois v. Munger, No. 2015-CH-10243,

19 (Cook Co. July 1, 2015).

Numerous state statutes require the Executive Branch to perform duties that act as

continuing appropriations. Examples include mandates like the following:

The Department on Aging shall exercise, administer, and enforce all rights,
powers and duties vested in the Department on Aging by the Illinois Act on the
Aging. 20 ILCS 110/110-5 (emphasis added).

The Department of Children and Family Services shall ensure a sufficient

number of placement and other resources of sufficient quality and variety to meet
the needs of children and families as specified in the individual case plan in Sec.

10
 6a of [the Children and Family Services Act]. 20 ILCS 505/2.1 (emphasis
added).

The Department of Veterans Affairs, shall have the power and duty to perform
such acts at the request of any veteran, or his or her spouse, surviving spouse or
dependents as shall be reasonably necessary or reasonably incident to obtaining or
endeavoring to obtain for the requestor any advantage, benefit or emolument
accruing or due to such person under any law of the United States, the State of
Illinois or any other state or governmental agency by reason of the service of such
a veteran. 20 ILCS 2805/2. Pursuant to that duty, the department shall
conduct numerous tasks enumerated in its enacting statute. Id. at 2805/2(1)-(10).

The Department of Corrections, which shall have the power to accept persons
committed to it by the courts of this State for care, custody, treatment and
rehabilitation, and to accept federal prisoners and aliens over whom the Office of
the Federal Detention Trustee is authorized to exercise the federal detention
function for limited purposes and periods of time. 730 ILCS 5/3-2-2(1)(a).

Of course, the above statutes are only examples. There are many similar provisions in

state law covering virtually every agency, board, or commission. Compliance with these

statutory mandates necessitates paying state employees. It is impossible to protect children or

the elderly without staff. It is impossible to provide services to our veterans without personnel.

It is impossible to house and care for prisoners without correctional officers, supervisory staff,

nurses, doctors, counselors, dietary workers, maintenance staff, library staff, and chaplains. No

matter how desirable from the Attorney Generals perspective, the State cannot violate its

statutory mandate to provide these and similar services.

Before the July 2015 Order could be lifted, it would be necessary to assess each state

agencys statutory mandate to determine what functions it is compelled to provide and, as a

result, what responsibilities the legislature has issued a de facto continuing appropriation to do

so. Once that legal analysis is performed, it would then be necessary to hold evidentiary

hearings to assess what employees are necessary to provide such services.

11
 In sum, the Attorney General failed to come forward with any argument to explain why

the Comptroller should stop paying employees necessary to comply with numerous statutory

mandates.

III. The Attorney Generals False Sense of Urgency Does Not Justify Lifting this
Courts July 2015 Order Precipitously

The Attorney General has offered no satisfactory explanation for why this Courts July

2015 Order should be dissolved in the hasty manner she demands. The Supreme Court decision

on which she constructs her argument was issued on March 24, 2016. See AFSCME, Council 31,

2016 IL 118422. That was almost ten months ago. If the Attorney General thought her

appropriation clause argument dispositive, she would have been in this Court just days after the

decision issued. Instead, she waited. If there was no emergency in March 2016, there is no

reason for the Attorney General to ask this Court to act precipitously today.

The Attorney General asserts that the balance of equities favors dissolution. That is not

true. Dissolving the July 2015 Order at the end of February would cause great economic

hardship and irreparable harm to state employees, their families and their communities. The

ability of the State to comply with federal consent decrees, to provide for the safety of the

people, and to comply with its statutory mandates would be jeopardized. Leaving the July 2015

Order in place would merely continue the practice the Attorney General has not seen fit to

challenge for almost a year since the Supreme Court ruled. In light of numerous other legal

theories under which employees may continue to be paid and in light of the dearth of evidentiary

record on the multitude of questions raised by the Attorney Generals motion, there is simply no

reason for the Attorney Generals invented urgency.

For the reasons described above, the July 2015 Order should continue in place, providing

the assurance for all state employees that they will continue to be paid for the services they

12
provide to state citizens. However, if it is to be lifted in part as to some state employees, the

Attorney General, as the movant, must explain specifically which state employees must lose their

paychecks and why. To-date, the Attorney General has failed to meet her burden.

CONCLUSION

This Courts July 2015 Order should be maintained in full or, in the alternative, continued

in effect until such time as this Court can convene evidentiary hearings at which the Attorney

General explains which State employees should no longer be paid.

Dated: February 14, 2017 BRUCE RAUNER, the Governor of the

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

/s/ Kenton J. Skarin

Kenton J. Skarin

Dennis Murashko, ARDC # 6293444

General Counsel,
Office of the Governor

Kenton J. Skarin, ARDC # 6304020

Deputy General Counsel,
Office of the Governor

Jack Vrett, ARDC # 6318863

Chief Labor & Employment Counsel,
Office of the Governor

100 W. Randolph Street, Suite 1-6100

Chicago, IL 60601
312-814-2121
Firm I.D. No. 99000

Special Assistant Attorneys General for

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

13
 CERTIFICATE OF SERVICE

Kenton J. Skarin, an attorney, hereby certifies that he caused the enclosed Defendants

Opposition to Motion to Present Additional Authority and to Dissolve Preliminary

Injunction to be served on the parties of record listed below via email on this 14th day of

February 2017 addressed to:

Brent Stratton
Chief Deputy Attorney General
Brent E. Legner
Deputy Solicitor General
100 W. Randolph, 12th Floor
Chicago, IL 60601
312-814-4499
312-814-2146
bstratton@atg.state.il.us
blegner@atg.state.il.us
Counsel for Attorney General Lisa Madigan

Stephen A. Yokich
Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich
8 S. Michigan Ave., 19th Floor
Chicago, IL 60603
syokich@laboradvocates.com
Counsel for AFSCME, Council 31

John Gay
General Counsel
Office of the Illinois State Comptroller
100 W. Randolph, Suite 15-500
Chicago, IL 60601
312-814-5783
john.gay@illinoiscomptroller.gov
Counsel for Defendant Susana A. Mendoza

/s/ Kenton J. Skarin

Kenton J. Skarin
EXHIBIT A
EXHIBIT B
 IN THE
CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION

PEOPLE OF THE STATE OF ILLINOIS, )

)
Plaintiff, )
)
v. )
)
LESLIE GEISSLER MUNGER, in her capacity )
as Comptroller of the State of Illinois, )
)
Defendant. )

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff People of the State of Illinois, by and through Lisa Madigan, Attorney

General of the State of Illinois, brings this complaint seeking declaratory, injunctive,

and other relief and alleges as follows:

Nature of Action

1. The People bring this complaint so that the Court may provide a

declaration to Defendant as to what payments can and should legally be made in the

absence of enacted annual appropriations statutes.

Parties

2. Lisa Madigan is the Attorney General of the State of Illinois. Pursuant to

the Illinois Constitution, she is the legal officer for the State and has standing to

bring this action on behalf of the People of the State of Illinois.

3. Defendant Leslie Geissler Munger is the Comptroller of the State of Illinois.

Pursuant to the Illinois Constitution, she shall maintain the States central fiscal

-1-
accounts and order payments out of the funds held by the Treasurer.

Venue

4. Venue is proper in the Circuit Court of Cook County because it is a county

in which the transaction or some part thereof occurred out of which this cause of

action arose.

Factual Allegations

5. The State of Illinoiss 2015 Fiscal Year ended on June 30, 2015.

6. The 2016 Fiscal Year started on July 1, 2015.

7. The General Assembly passed appropriations legislation for the 2016 Fiscal

Year and the Governor vetoed most of that legislation. Once a veto message is

returned to the originating house of the General Assembly, that house has 15

calendar days to override the veto. If it does so, the other house of the legislature

then has 15 calendar days to override the veto.

8. As a result of the Governors vetoes, and as of the writing of this complaint,

the State has not enacted appropriations statutes for the 2016 Fiscal Year, other than

statutes providing education funding.

9. Payments for state obligations for the 2016 Fiscal Year are coming due

imminently and before completion of the veto override timeframe.

10. The Comptroller must process vouchers for payments to be made from

state funds.

11. Without enacted appropriations statutes or other lawful expenditure

-2-
authority, the Comptroller is not permitted to process vouchers for payment of state

funds.

12. An actual controversy has arisen in light of substantial uncertainty

regarding which, if any, payments may be authorized by the Comptroller in the

absence of annual appropriations statutes.

Count One Declaratory and Injunctive Relief

13. Plaintiff repeats and realleges the foregoing allegations as though they

were contained herein.

14. The Appropriations Clause of the Illinois Constitution provides that The

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

funds by the State. ILL . CONST. art. VIII, 2(b).

15. The State Comptroller Act provides that no payment may be made from

public funds held by the State Treasurer except by warrant from the Comptroller. 15

ILCS 405/9(a).

16. That statute further provides that no warrant for the payment of money

may be drawn by the Comptroller without presentation of a voucher indicating that

the expenditure is pursuant to law and authorized. 15 ILCS 405/9(b).

17. Additionally, the Comptroller shall examine each voucher and determine

whether appropriations or expenditure authority other than appropriations are

available to make the expenditure of funds. 15 ILCS 405/9(c).

18. There are, however, instances in which an annual appropriation is not

-3-
required.

19. Payments made pursuant to continuing appropriations, including without

limitation payments for debt service, judicial salaries, salaries of legislators, and

legislative operations (see, e.g., 15 ILCS 20/50-22), do not require an annual

appropriation and may be authorized by the Comptroller in the absence of an annual

appropriation. See Graham v. Ill. State Toll Highway Auth., 182 Ill. 2d 287 (1998).

20. Payments from non-appropriated funds do not require an annual

appropriation and may be authorized by the Comptroller in the absence of an annual

appropriation.

21. Payments for operations of the judicial branch may be authorized by the

Comptroller in the absence of an appropriation. See Jorgensen v. Blagojevich, 211 Ill.

2d 286 (2004).

22. The Supremacy Clause of the United States Constitution provides that

federal law is the supreme law of the land. U.S. CONST . art. VI, cl. 2. Payments

mandated by federal law thus are not limited by state law restrictions concerning

legislative appropriations.

23. Federal consent decrees enforcing federal rights are federal law for the

purposes of the Supremacy Clause.

24. By virtue of the Supremacy Clause, the Comptroller must authorize

payments necessary to comply with federal consent decrees in the absence of an

annual appropriation.

-4-
 25. Also by virtue of the Supremacy Clause, in the absence of an annual

appropriation, the Comptroller must authorize payments necessary to comply with

the States obligations pursuant to federal law, including the States participation in

federal programs requiring the expenditure of state funds.

26. In the absence of an annual appropriation, the Comptroller lacks authority

under state law to authorize payment of wages due to state employees. AFSCME v.

Netsch, 216 Ill. App. 3d 566 (4th Dist. 1999).

27. Pursuant to the Supremacy Clause, the Fair Labor Standards Act (FLSA),

29 U.S.C. 201 et seq., requires the payment of federal minimum wage and overtime

to covered state employees in the absence of an annual appropriation.

28. The Department of Central Management Services has issued a statement

maintaining that it would take 9 to 12 months to prepare a payroll that complies with

the FLSA. See Exhibit A attached to this Complaint.

29. The first state employee paychecks of Fiscal Year 2016 are due to be issued

on July 15, 2015.

30. The Comptroller must receive the payroll information for that payroll on

or about July 10, 2015.

31. The People have a clearly ascertainable right in need of protection.

32. The People have a likelihood of success on the merits of their claim.

33. The People have no adequate remedy at law in the absence of an

emergency injunction.

-5-
 34. The People will suffer irreparable harm in the absence of an emergency

injunction.

35. The balance of the equities weighs in favor of granting injunctive relief.

WHEREFORE, Plaintiff People of the State of Illinois respectfully prays for

the following relief:

a. A declaration that the Comptroller, in the absence of an annual

appropriation, is authorized to process payment vouchers for continuing

appropriations;

b. A declaration that the Comptroller, in the absence of an annual

appropriation, is authorized to process payment vouchers for non-appropriated funds;

c. A declaration that the Comptroller, in the absence of an annual

appropriation, is authorized to process payment vouchers for operations of the

judicial branch;

d. A declaration that the Comptroller, in the absence of an annual

appropriation, is authorized to process payment vouchers to meet obligations

required by consent decrees;

e. A declaration that the Comptroller, in the absence of an annual

appropriation, is authorized to process payment vouchers to meet obligations

required by the States participation in federal programs;

f. A declaration that the Comptroller, in the absence of an annual

appropriation, is authorized to process payment vouchers for the payment of the

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federal minimum wage and overtime requirements of the FLSA, or in the alternative,

a declaration that the Comptroller, in the absence of an annual appropriation and

payroll vouchers that comply only with the minimum requirements of the FLSA, is

not authorized to process payment vouchers for the state employee payroll;

g. A temporary and permanent injunction requiring the Comptroller to

process payment vouchers for continuing appropriations, non-appropriated funds,

judicial branch operations, consent decrees, and federal statutory mandates, in the

absence of an annual appropriation;

h. A temporary and permanent injunction requiring the Comptroller to

process payment vouchers for payrolls that meet only the minimum requirements of

the FLSA or in the alternative an injunction enjoining the Comptroller from

processing payroll vouchers until the enactment of appropriations statutes; and

i. Any and all other relief that this Court deems just.

Respectfully submitted,

LISA MADIGAN
Attorney General
State of Illinois

BY: /s/ Khara Coleman Washington

KHARA COLEMAN WASHINGTON
Assistant Attorney General

BRETT E. LEGNER
Deputy Solicitor General
100 West Randolph, 12th Floor
Chicago, Illinois 60601
(312) 814-2146
Attorney Code 99000

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 VERIFICATION

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.

Exhibit
A
EXHIBIT C