No. IN THE SUPREME COURT OF ILLINOIS

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1 No. 01 E-FILED 2/20/ :57 PM Carolyn Taft Grosboll SUPREME COURT CLERK IN THE SUPREME COURT OF ILLINOIS SPRINGFIELD RIGHT TO LIFE; LAKE COUNTY RIGHT TO LIFE COMMITTEE, INC.; KNOX COUNTY RIGHT TO LIFE, NFP; MORGAN COUNTY RIGHT TO LIFE, INC., NFP; HENRY COUNTY RIGHT TO LIFE, INC.; CLINTON COUNTY CITIZENS FOR LIFE; RIGHT TO LIFE OF ADAMS COUNTY, INC.; FAITH AND FREEDOM FAMILY MINISTRY, NFP; PRO-LIFE ACTION LEAGUE, INC.; DIOCESE OF SPRINGFIELD-IN-ILLINOIS; ILLINOIS RIGHT TO LIFE ACTION; ILLINOIS FEDERATION FOR RIGHT TO LIFE, on behalf of certain of their Illinois taxpayer members, and REP. BARBARA WHEELER; SEN. DAN MCCONCHIE; REP. MARK BATINICK; SEN. KYLE MCCARTER; REP. STEVE REICK; SEN. PAUL SCHIMPF; REP. KEITH WHEELER; SEN. DALE FOWLER; REP. CHARLIE MEIER; SEN. SAM MCCANN; REP. JEANNE IVES; AND SEN. NEIL ANDERSON, as Illinois taxpayers, Plaintiffs-Appellants-Movants, v. FELICIA NORWOOD, Director of the Department of Healthcare and Family Services; MICHAEL HOFFMAN, Acting Director of the Department of Central Management Services; MICHAEL FRERICHS, Treasurer of the State of Illinois; SUSANA MENDOZA, Comptroller of the State of Illinois, Defendants-Appellees-Respondents, and THE HONORABLE CRAIG H. DEARMOND, THE HONORABLE THOMAS M. HARRIS, THE HONORABLE JAMES A. KNECHT, THE HONORABLE ROBERT J. STEIGMANN, THE HONORABLE JOHN W. TURNED AND THE HONORABLE LISA HOLDER WHITE, Justices of the Appellate Court of Illinois, Fourth District, Respondents. Appeal from the Seventh Judicial Circuit, Sangamon County, Illinois Circuit Court No.: 2017-MR-1032 Motion for leave to appeal pursuant to Supreme Court Rule 302(b from the Appellate Court of Illinois, Fourth District, Appeal No There heard on appeal from the Seventh Judicial Circuit, Sangamon County, Illinois, Circuit Court No MR The Honorable Jennifer M. Ascher Presiding. 1

2 MOTION FOR DIRECT APPEAL PURSUANT TO SUPREME COURT RULE 302(B OR, IN THE ALTERNATIVE, FOR SUPERVISORY ORDER Now come Plaintiffs-Appellants-Respondents ( Plaintiffs, by and through their counsel, and respectfully request that this Court grant them leave to appeal, pursuant to Supreme Court Rule 302(b, an erroneous decision of the Circuit Court which implicates issues of extraordinary public interest which require immediate resolution by this Court. The Circuit Court dismissed Count I of Plaintiffs taxpayer complaint with prejudice on the basis that the Courts of this State lack the power to enjoin expenditures by the legislature that contravene the Illinois Constitution. The Circuit Court dismissed Count II of the complaint with prejudice based on a finding that a bill still pending in the General Assembly, subject to a motion to reconsider, must nonetheless be considered passed under the Illinois Constitution and the Effective Date of Laws Act. In the alternative, Plaintiffs ask that this Court grant them supervisory relief pursuant to Supreme Court Rule 383, and direct the Appellate Court, Fourth District, to hear Plaintiffs appeal of the dismissal of their complaint and the denial of their request for injunctive relief on an expedited basis. In support of their request for supervisory relief Plaintiffs have concurrently submitted their Explanatory Suggestions In Support Of Alternative Request For Supervisory Relief. STATEMENT OF FACTS 1. This is a taxpayer action to restrain and enjoin the illegal expenditure of funds for elective abortions and other procedures under recently-enacted House Bill 40 ( HB 40. Plaintiffs include the named pro-life organizations and the Diocese of Springfield, representing 2

3 thousands of Illinois taxpayer members, as well as the named Illinois legislators asserting their rights as taxpayers. (C ; Am. Comp., paras HB 40 reverses the prohibition on funding of elective abortions 2 by the State s Medicaid and employee health insurance programs and mandates coverage by Medicaid for all reproductive health care that is otherwise legal. (C866; Am. Comp., para Because Defendants-Appellees ( Defendants take the (improper position that HB 40 is effective January 1, 2018, they are now expending state funds to accept and process reimbursement requests for elective abortions and other procedures that were previously unfunded but are newly allowed or required pursuant to HB 40, and will within the next days begin expending further state funds to actually reimburse for those elective abortions and other procedures. 3 However, as alleged by Plaintiffs, such disbursements are in violation of the Constitution and laws of the State of Illinois. (C866, ; Am. Comp., paras. 2, As alleged in Plaintiffs complaint, under HB 40, approximately 30,000 of the state s annual 40,000 abortions will become eligible for payment by Medicaid. (C ; Am. Comp., paras The annual cost of abortions funded pursuant to HB 40 is at least $10 1 Citations in the form (C[common law record page number] and (R[report of proceedings page number] are to the Record on Appeal which was filed, on January 18, 2018, by the Clerk of the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois, with the Appellate Court and which is being filed in this Court together with this Motion. Also filed with this Motion is a Rule 328 Supporting Record, which contains the parties filings with the Fourth District Appellate Court and copies of the Fourth District Appellate Court s orders. Citations to the Supporting Record are in the form (SR [page number]. 2 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. 3 In the Circuit Court, the Department of Healthcare and Family Services declared that Medicaid reimbursements are currently processed by the Department within approximately 30 days, though opining that HB 40 reimbursements may take between 30 and 45 days or longer (C842, and the Comptroller s Office declared that current delay for payment of Medicaid reimbursements is approximately 60 days (C days from January 1 puts the first payments of HB 40 Medicaid reimbursements in the range of April 1-15 of this year. 3

4 million, and potentially upwards of $33 million. (C872; Am. Comp., paras , C696-97; Decl. of Prof. Michael New. 5. 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 In Count I of their complaint, Plaintiffs alleged 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, In Count II of the Complaint, Plaintiffs challenged Defendants contention that HB 40 is effective January 1, 2018 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, By Order dated December 28, 2017, the Circuit Court dismissed Plaintiffs complaint with prejudice, holding, with respect to Count I of the complaint, that Illinois Courts lack jurisdiction, under the political question doctrine, to interpret or enforce the revenue estimate and appropriations requirements of Section 2(b. (R70. The Circuit Court s ruling in this regard, conflicts with the longstanding precedent of this Court and is an abdication of one of, 4

5 if not the, most important powers of the Courts of this State the power to decide whether legislative actions comply with the Illinois Constitution. 9. 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 s ruling deeming HB 40 passed on May 10, 2017 conflicts with the rules explicitly adopted by the Illinois Senate and necessarily means that the General Assembly violated Section 9(a of Article IV of the Illinois Constitution, which provides that [e]very bill passed by the General Assembly shall be presented to the Governor within 30 calendar days after its passage. 10. 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, (C Plaintiffs filed their Notice of Appeal on January 2, (C Because of the urgency of the issues involved, Plaintiffs twice moved the Appellate Court to expedite Plaintiffs appeal. In connection with Plaintiffs first motion to expedite, the Appellate Court granted the motion in part ordering the Circuit Court Clerk file the Record on Appeal by January 26, 2018 (rather than by March 6, 2018, its due date under Rule 326. The Appellate Court, however, further ordered, Briefing dates will follow Supreme Court Rule 343 unless filed earlier by the parties and further relief is requested. (SR On January 18, 2018, the Circuit Court Clerk s office filed the Record on Appeal. Plaintiffs filed their opening brief eleven (11 days later, on January 29, (SR Concurrent with the filing of their Brief, Plaintiffs filed their Renewed Motion To Expedite Appeal, asking that the Court set an abbreviated briefing schedule for Defendants 5

6 Brief and Plaintiff s Reply Brief, and then set the appeal for oral argument and decision at the Appellate Court s earliest convenience. 4 (SR 16. Defendants objected, insisting they needed fifty-nine (59 days in which to file their Brief (the balance of the time allowed under the Rules for Plaintiffs to file their opening brief 24 days plus the 35 days allowed for filing a response brief. (SR By Order dated February 6, 2018, the Appellate Court denied Plaintiffs Renewed Motion To Expedite Appeal. (SR Accordingly, provided the Appellate Court does not allow any extensions, and even if Plaintiffs take only seven (7 days in which to file their Reply Brief (as proposed by Plaintiffs in their Motion To Expedite Appeal and Renewed Motion To Expedite Appeal, Plaintiffs appeal will not be fully briefed until April 5, It is unknown how long it will take for the Appellate Court to set the case for oral argument (if any and to issue its decision. Throughout that time, Defendants will continue to proceed with the unconstitutional and illegal funding of HB 40 and any relief to which Plaintiffs are entitled under the complaint will be mostly or entirely obviated, for Defendants can only enjoin the expenditure of general revenue funds they cannot recover those funds once spent. See 735 ILCS 5/ Moreover, following any decision issued by the Appellate Court, the appeal may not be concluded, and the Appellate Court s ruling may not be final. The losing parties will have 4 Plaintiffs proposed briefing schedule would have ensured that the matter was fully briefed by the end of February, allowing the Appellate Court the full month of March to consider the Appeal, prior to the approximate April 1 start date for payment by the Comptroller of the elective abortion reimbursement requests, which are now being processed by state employees. 5 On February 16, 2018, Plaintiffs served and submitted for electronic filing an earlier version of this Motion for Direct Appeal, etc., which was rejected on review by the Clerk today, February 20, Plaintiffs thus refile this Motion, Explanatory Suggestions, and supporting papers, in accord with the Clerk s filing instructions and making typographical and other minor corrections that do not affect the substance of the motion and suggestions. 6

7 the right to appeal to this Court or the right to seek leave to appeal. Until any appeal or other relief sought by any of the parties is resolved by this Court, Defendants will proceed with the unconstitutional and illegal funding of HB 40, and again, any relief to which Plaintiffs are entitled under the complaint may be mostly or entirely obviated. I. THE COURT SHOULD ALLOW AN IMMEDIATE DIRECT APPEAL PURSUANT TO SURPEME COURT RULE 302(b. A. This Case Implicates The Propriety Of The Expenditure Of At Least $10 Million To Upwards of $33 Million Taxpayer Dollars Annually. 18. This case raises issues of extraordinary public interest which require immediate decision by this Court. At issue is the unconstitutional and illegal expenditure of at least $10 million to upwards of $33 taxpayer dollars annually. (C872; Am. Comp., paras , C696-97; Decl. of Prof. Michael New. 19. Supreme Court Rule 302(b provides, After the filing of the notice of appeal to the Appellate Court in a case in which the public interest requires prompt adjudication by the Supreme Court, the Supreme Court or a justice thereof may order that the appeal be taken directly to it. Upon the entry of such an order any documents already filed in the Appellate Court shall be transmitted by the clerk of that court to the clerk of the Supreme Court. From that point the case shall proceed in all respects as though the appeal had been taken directly to the Supreme Court. 20. This Court has previously allowed direct discretionary appeals from rulings regarding the constitutionality of statutory provisions. For example, in People v. Waid, 221 Ill.2d 464, (2006, this Court, on its own motion, allowed a direct appeal pursuant to Supreme Court Rule 302(b from an interlocutory ruling that a statutory provision was unconstitutional, 7

8 finding the issue raised was a matter of public interest requiring prompt adjudication by the Supreme Court. 21. This Court has also allowed direct appeals in situations where an improvident use of the taxpayer s money could be avoided by allowing an immediate appeal. See Crane Paper Stock Co. v. Chicago and Northwestern Ry. Co., 63 Ill.2d 61, (1976. B. This Case Raises An Issue Of Extraordinary Public Interest Regarding The Ability Of The Courts Of This State To Enforce The Provisions Of The Illinois Constitution, Including Ill. Const. 1970, art. VIII, 2(b. 22. Section 2(b provides: The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year. 23. 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. 24. Plaintiffs alleged that payments pursuant to HB 40 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 Defendants conceded that Section 2(b requires a revenue estimate and 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, Before the Circuit Court, Defendants suggested the Senate s passage of Senate Joint Resolution 42, a resolution upon which the House never acted, constituted the adoption by the General Assembly of a revenue estimate required by Section 2(b. However, Section 2(b s 8

9 reference to funds estimated by the General Assembly requires action by both the House and the Senate. Article IV, 1 of the Illinois Constitution of 1970 provides that [t]he legislative power is vested in a General Assembly and specifies that the General Assembly consists of a Senate and a House of Representatives elected by the electors from 59 Legislative Districts and 118 Representative Districts. 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. 27. Moreover, in enacting 25 ILCS 155/4(a, the General Assembly codified the method of adopting the revenue estimate required by Section 2(b, specifying that it is to be by joint resolution of the House and Senate. It is undisputed that the House and Senate never adopted a revenue estimate by joint resolution 28. Further, as alleged in the complaint, no new or supplemental appropriation of funds was enacted by the General Assembly in connection with HB 40, 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, P.A 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 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, %20Reports/FY%202017/Economic_and_%20Fiscal_%20Policy_%20Report_ pdf. 9

10 (C874; Am. Comp., paras In dismissing with prejudice Plaintiffs claim that payments pursuant to HB 40 violate Section 2(b, the Circuit Court accepted Defendants argument that Plaintiffs challenge to payments pursuant to HB 40 raises a political question which the Court was unable to address without violating the separation of powers between the judiciary and the legislature. (R As the U.S. Supreme Court explained in Baker v. Carr, 369 U.S. 186 (1962, 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 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, Because there was admittedly no revenue estimate, this case does not, contrary to the Circuit Court s conclusion, implicate any political 6 Before the Circuit Court, Defendants referenced the Senate s passage of Senate Joint Resolution 42, a resolution upon which the House never acted. 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 Assembly consists of a Senate and a House of Representatives elected by the electors from 59 Legislative Districts and 118 Representative Districts. 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. 10

11 question. In the absence of any revenue estimate at all, no issue is raised as to how the General Assembly determined a revenue estimate and whether, in the Court s view, this estimate was appropriate (C Contrary to the Circuit Court s ruling, 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. 33. As this 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 this Court reiterated, The mere fact that political rights and questions are involved does not create immunity from judicial review. (Citations. Id. In Rock, the 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 This case presents an issue analogous to that addressed by this Court in Rock: 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 11

12 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. 35. The circumstances presented in this case, where the court was asked to decide whether the legislature wholly failed to perform a non-normative constitutional 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, (1st Dist (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. See also Donovan v. Holzman, 8 Ill.2d 87 (1956 (In Donovan, in ruling on the constitutionality of an apportionment act, 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 the courts may finally determine; the latter is for the legislature Defendants conceded that Section 2(b imposes upon the General Assembly not only 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 12

13 made a revenue estimate and valid appropriations, but there are no clear standards regarding how the General Assembly must fulfill either of these duties.. See also Ill. Collaboration on Youth v. Dimas, 2017 IL App (1st , 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, (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 , at C ( The explanation disseminated to the voters contemplates, and the Constitutional Convention debates clarify, that the General Assembly may decide its own estimate of available funds and is not constrained by the Governor's estimate. Once the legislature determines that estimate, it acts as a ceiling within which they must appropriate. Accordingly, considering the explanation to voters and the delegates' comments, the intent of section 2(b is that the legislature s appropriations authority is limited by the General Assembly s funds estimate. (emphasis supplied (citations omitted. 37. And even beyond the lack of estimated available revenues, Fiscal Year 2018 appropriations for existing services under Medicaid and the state health insurance program were determined prior to and without consideration of the cost of any new services mandated by HB 40, such that there was no appropriation for HB 40 in any amount. (C873; Am. Comp., paras ; see Dimas, 57 ( the Comptroller may not issue payments where there are no appropriations against which warrants may be drawn The Circuit Court s dismissal of Count I of Plaintiffs complaint allows the unconstitutional expenditure of millions of dollars of taxpayer funds to go forward based on a 13

14 fundamental misapprehension of the power of the courts to address claims of unconstitutionality that clearly contravenes the precedent of this Court. Accordingly, the Circuit Court s decision raises issues of exceptional public importance that require immediate resolution by this Court. C. This Case Raises An Issue Of Extraordinary Public Interest Regarding The Construction Of the Illinois Constitution, art. IV, 10, and the Effective Date of Laws Act, 5 ILCS 75/ The Illinois Constitution provides that, [a] bill passed after May 31 shall not become effective prior to June 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date. Ill. Const., art. IV, 10; see also Effective Date of Laws Act, 5 ILCS 75/2 (codifying the same rule. The purpose of these provisions is to maintain the General Assembly as a part-time legislature, motivating legislators to conclude their work by May 31 st (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, and to provide citizens sufficient notice of a new law before it takes effect. See People ex rel. Alvarez v. Howard, 2016 IL , 22. ( The Effective Date Act helps to ensure that parties have sufficient opportunity to conform their conduct to the law HB 40 was not passed until 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, Defendants have treated HB 40 as taking effect on January 1, 2018 and have now begun processing claims for the disbursement of funds pursuant to HB HB 40 received a simple majority vote of the Illinois House on April 25, 2017, and arrived in the Senate on April 26, where it received a simple majority vote on May 10, (C874; Am. Comp., paras The same day, Senator Don Harmon, who had voted in favor 14

15 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 sent to the Governor, who signed it on September 28, (C874; Am. Comp., paras The date of HB 40 s passage out of the Senate to the Governor s desk was September 25, (C ; Am. Comp., paras Accordingly, the Illinois General Assembly website identifies September 25, 2017, as the date that HB 40 Passed Both Houses. 7 (C875; Am. Comp., para 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. (2010 ( Mason s Manual 467(1 Effect of Making Motion to Reconsider, adopted by Ill. Sen. R ( [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 ; see also Ceresa v. City of Peru, 133 Ill. App. 2d 748, 753 (3d Dist (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. 44. 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 7 Bill Status, HB 40, DocNum=40&GAID=14&GA=100&DocTypeID=HB&LegID=99242&SessionID=91. 15

16 has been lost and it has been finally passed. (emphasis added. A bill that is subject to a motion to reconsider cannot pass out of the possession of the Senate until after the motion has been decided or withdrawn. Ill. Sen. R 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, Under the rules expressly 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, Id. 46. Moreover, if May 10 th is deemed the date of HB 40 s passage, then the General Assembly violated Section 9(a of Article IV of the Illinois Constitution by not presenting HB 40 to the governor in June, for that Section provides that [e]very bill passed by the General Assembly shall be presented to the Governor within 30 calendar days after its passage. 47. Like the Circuit Court s dismissal of Count I of Plaintiffs complaint, the Circuit Court s dismissal of Count II of Plaintiffs complaint allows the unconstitutional expenditure of millions of dollars of taxpayer funds to go forward, and it too raises issues of exceptional public importance that require immediate resolution by this Court. II. IN THE ALTERNATIVE TO ALLOWING AN IMMEDIATE DIRECT APPEAL, THIS COURT SHOULD ENTER A SUPERVISORY ORDER DIRECTING THE APPELLATE COURT TO EXPEDITE PLAINTIFFS APPEAL. 48. As set forth above, the Appellate Court denied Plaintiffs requests to expedite briefing, oral argument, and consideration of this appeal. In the event this Court declines 16

17 Plaintiffs request to allow an immediate direct appeal pursuant to Supreme Court Rule 302(b, Plaintiffs respectfully request that the Court enter a supervisory order directing the Appellate Court to expedite briefing and consideration of Plaintiffs appeal. 49. As set forth supra, this appeal raises constitutional issues of great public concern, and challenges the propriety of the imminent or ongoing expenditure of many millions in taxpayer dollars, considerations that, at a minimum, require expedited consideration and resolution of this appeal by the Appellate Court. And, as set forth in the Explanatory Suggestions filed concurrent with this Motion, there was no good reason for the Appellate Court to decline to hear and decide this appeal on an expedited basis. WHEREFORE, Plaintiffs respectfully request that this Court grant them leave to appeal, pursuant to Supreme Court Rule 302(b, or, in the alternative, that the Court enter a supervisory order directing the Appellate Court to expedite briefing and resolution of Plaintiffs appeal. Respectfully submitted, /s/peter Breen One of the Attorneys for Plaintiffs 17

18 Peter Breen Thomas Brejcha Thomas Olp Thomas More Society A public interest law firm 19 S. LaSalle St., Ste. 603 Chicago, Illinois ( docketing@thomasmoresociety.org pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org tolp@thomasmoresociety.org Counsel for Plaintiffs-Appellants Joan M. Mannix Joan M. Mannix, Ltd. 135 S. LaSalle St., Ste Chicago, IL ( jmannixlaw@gmail.com Counsel for Plaintiffs-Appellants Dawn D. Behnke Duane Young LaBarre, Young & Behnke 1300 S 8th St., Ste. 2 Springfield, IL ( rachel@lyblaw.com Counsel for Plaintiffs-Appellants Bradley E. Huff Graham & Graham, Ltd S 8th St Springfield, IL ( Counsel for Plaintiff-Appellant Diocese of Springfield-in-Illinois 18

19 No. IN THE SUPREME COURT OF ILLINOIS SPRINGFIELD RIGHT TO LIFE; LAKE COUNTY RIGHT TO LIFE COMMITTEE, INC.; KNOX COUNTY RIGHT TO LIFE, NFP; MORGAN COUNTY RIGHT TO LIFE, INC., NFP; HENRY COUNTY RIGHT TO LIFE, INC.; CLINTON COUNTY CITIZENS FOR LIFE; RIGHT TO LIFE OF ADAMS COUNTY, INC.; FAITH AND FREEDOM FAMILY MINISTRY, NFP; PRO-LIFE ACTION LEAGUE, INC.; DIOCESE OF SPRINGFIELD-IN-ILLINOIS; ILLINOIS RIGHT TO LIFE ACTION; ILLINOIS FEDERATION FOR RIGHT TO LIFE, on behalf of certain of their Illinois taxpayer members, and REP. BARBARA WHEELER; SEN. DAN MCCONCHIE; REP. MARK BATINICK; SEN. KYLE MCCARTER; REP. STEVE REICK; SEN. PAUL SCHIMPF; REP. KEITH WHEELER; SEN. DALE FOWLER; REP. CHARLIE MEIER; SEN. SAM MCCANN; REP. JEANNE IVES; AND SEN. NEIL ANDERSON, as Illinois taxpayers, Plaintiffs-Appellants-Movants, v. FELICIA NORWOOD, Director of the Department of Healthcare and Family Services; MICHAEL HOFFMAN, Acting Director of the Department of Central Management Services; MICHAEL FRERICHS, Treasurer of the State of Illinois; SUSANA MENDOZA, Comptroller of the State of Illinois, Defendants-Appellees-Respondents, and THE HONORABLE CRAIG H. DEARMOND, THE HONORABLE THOMAS M. HARRIS, THE HONORABLE JAMES A. KNECHT, THE HONORABLE ROBERT J. STEIGMANN, THE HONORABLE JOHN W. TURNED AND THE HONORABLE LISA HOLDER WHITE, Justices of the Appellate Court of Illinois, Fourth District, Respondents. Appeal from the Seventh Judicial Circuit, Sangamon County, Illinois Circuit Court No.: 2017-MR-1032 Motion for leave to appeal pursuant to Supreme Court Rule 302(b from the Appellate Court of Illinois, Fourth District, Appeal No There heard on appeal from the Seventh Judicial Circuit, Sangamon County, Illinois, Circuit Court No MR The Honorable Jennifer M. Ascher Presiding. 1

20 EXPLANATORY SUGGESTIONS IN SUPPORT OF ALTERNATIVE REQUEST FOR SUPERVISORY ORDER Now come Plaintiffs-Appellants-Respondents ( Plaintiffs, by and through their counsel, and respectfully submit these Explanatory Suggestions in support of their alternative request for the entry of a supervisory order directing the Appellate Court, Fourth District, to hear Plaintiffs appeal of the dismissal of their complaint and the denial of their request for injunctive relief on an expedited basis. Plaintiffs Motion For Direct Appeal Pursuant To Supreme Court Rule 302(b Or, In the Alternative, For Supervisory Order, is being filed concurrently with these Explanatory Suggestions. Background Facts This is a taxpayer action to restrain and enjoin the illegal expenditure of funds for elective abortions and other procedures under recently-enacted House Bill 40 ( HB 40. HB 40 reverses the prohibition on funding of elective abortions 1 by the State s Medicaid and employee health insurance programs and mandates coverage by Medicaid for all reproductive health care that is otherwise legal. (C866; Am. Comp., para Because Defendants-Appellees ( Defendants take the (improper position that HB 40 is effective January 1, 2018, they are now expending state funds to accept and process reimbursement requests for elective abortions and other procedures that were previously 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 Citations in the form (C[common law record page number] and (R[report of proceedings page number] are to the Record on Appeal which was filed, on January 18, 2018, by the Clerk of the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois, with the Appellate Court and which is being filed with this Court together with this Motion. Also filed with this Motion is a Rule 328 Supporting Record, which contains the parties filings with the Fourth District Appellate Court and copies of the Fourth District Appellate Court s orders. Citations to the Supporting Record are in the form (SR [page number]. 2

21 unfunded but are newly allowed or required pursuant to HB 40, and will within the next days begin expending further state funds to actually reimburse for those elective abortions and other procedures. 3 However, as alleged by Plaintiffs, such disbursements will be in violation of the Constitution and laws of the State of Illinois. (C866, ; Am. Comp., paras. 2, As alleged in Plaintiffs complaint, under HB 40, approximately 30,000 of the state s annual 40,000 abortions will become eligible to be paid for by Medicaid. (C ; Am. Comp., paras The annual cost of abortions funded pursuant to HB 40 is at least $10 million, and potentially upwards of $33 million. (C872; Am. Comp., paras , C696-97; Decl. of Prof. Michael New. Procedural History In Count I of their complaint, Plaintiffs alleged 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, In Count II of the Complaint, Plaintiffs challenged Defendants position that HB 40 is effective January 1, 2018 as 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 3 In the Circuit Court, the Department of Healthcare and Family Services declared that Medicaid reimbursements are currently processed by the Department within approximately 30 days, though opining that HB 40 reimbursements may take between 30 and 45 days, and the Comptroller s Office declared that current delay for payment of Medicaid reimbursements is approximately 60 days days from January 1 puts payments of Medicaid reimbursements in the range of March 31-April 14 of this year. 3

22 Date of Laws Act for an earlier effective date. (Ill. Const. 1970, art. IV, 10; 5 ILCS 75/2. (C39-40, By Order dated December 28, 2017, the Circuit Court dismissed Plaintiffs complaint with prejudice, holding, with respect to Count I of the complaint, that Illinois Courts lack jurisdiction, under the political question doctrine, to interpret or enforce the revenue estimate and appropriations requirements of Section 2(b. (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. (C864. Plaintiffs filed their Notice of Appeal on January 2, (C Because of the urgency of the issues involved, Plaintiffs twice moved the Appellate Court to expedite Plaintiffs appeal. In connection with Plaintiffs first motion to expedite, the Appellate Court granted the motion in part ordering the Circuit Court Clerk file the Record on Appeal by January 26, 2018 (rather than by March 6, 2018, its due date under the Rule 326. The Appellate Court, however, further ordered, Briefing dates will follow Supreme Court Rule 343 unless filed earlier by the parties and further relief is requested. (SR 15. On January 18, 2018, the Circuit Court Clerk s office filed the Record on Appeal. Plaintiffs filed their opening brief eleven (11 days later, on January 29, (SR 34. Concurrent with the filing of their Brief, Plaintiffs filed their Renewed Motion To Expedite Appeal, asking that the Court set an abbreviated briefing schedule for Defendants Brief 4

23 and Plaintiff s Reply Brief, and then set the appeal for oral argument and decision at the Appellate Court s earliest convenience. (SR 16. Defendants objected, insisting they needed fifty-nine (59 days in which to file their Brief (the balance of the time allowed under the Rules for Plaintiffs to file their opening brief 24 days plus the 35 days allowed for filing a response brief. 4 (SR 22. The only reason advanced for Defendants inability to file its Brief within a reasonable time frame was the need for Deputy Solicitor General, Brett Legner, to devote the entire month of February (from February 1 through February 26, to prepare for an oral argument before the U.S. Supreme Court that he acknowledged he was not presenting. (SR 24. Argument I. Plaintiffs Appeal Presents Only Legal Issues Which May Be Expeditiously Decided. pleadings: The Record on Appeal in this case is not extended. It consists primarily of the following 1. Verified Amended Taxpayer Complaint 2. Petition for Leave to File Taxpayer Complaint 3. Defendants Motion to Dismiss & Memorandum in Support 4. Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction and Combined Memorandum in Support and in Response to Motion to Dismiss 5. Defendants Memorandum in Opposition to Plaintiffs Motion and in Support of Motion to Dismiss 6. Transcript of December 28, 2017 Hearing on the Motions This appeal does not involve any factual disputes. Instead, it presents two legal issues that the parties previously extensively briefed before the Circuit Court. (See C In the attached Proposed Order, Plaintiffs propose a briefing schedule that requires Defendants to get their brief on file within the 35 days typically provided by Supreme Court Rule 343, with no extensions, and Plaintiffs their reply within 7 days, with no extensions. 5

24 II. Defendants Failed To Provide An Adequate Basis For Their Claimed Inability To Brief The Appeal On An Expedited Basis. Before the Appellate Court, Defendants provided no explanation why the schedule of a single attorney precluded Defendants from filing their Brief on an expedited basis. Defendants failed to offer any explanation why the three Assistant Attorneys General who successfully represented Defendants before the Circuit Court were unable to prepare Defendants Brief. III. Defendants Control The Expenditure Of State Funds Pursuant To HB 40. Before the Appellate Court, Defendants argued that Plaintiffs failed to establish that any irreparable harm would occur if briefing on the appeal is not expedited because, according to Defendants, Plaintiffs failed to establish that any expenditure of state funds will occur during the briefing phase of the appeal. Defendants, not Plaintiffs, are in complete control of when the expenditure of state funds will occur. Defendants have not and cannot dispute that, because Defendants have (unconstitutionally accorded HB 40 a January 1, 2018 effective date, they are now expending state funds to process (illegal HB 40 reimbursements and may, if they elect to do so, immediately begin funding those reimbursements. Defendants failed to offer any representation that they would not begin funding abortions pursuant to HB 40 prior to the resolution of Plaintiffs appeal. Defendants failure to provide such assurances only reinforces the need for expediting Plaintiffs appeal. IV. Without Supervisory Relief From This Court, The Taxpayers Of This State Will Sustain Irreparable Harm. If this Court declines to allow a direct immediate appeal and denies Plaintiffs alternative request for an order directing the Appellate Court to expedite its consideration of Plaintiffs appeal, Plaintiffs and all Illinois other taxpayers will sustain irreparable harm. Provided the Appellate Court does not allow any extensions, and even if Plaintiffs takes only seven (7 days in 6

25 which to file their Reply Brief (as proposed by Plaintiffs in their Motion To Expedite Appeal and Renewed Motion To Expedite Appeal, Plaintiffs appeal will not be fully briefed until April 5, It is unknown how long it will take for the Appellate Court to set the case for oral argument (if any and to issue its decision. Throughout that time, Defendants will proceed with the unconstitutional and illegal funding of HB 40 and any relief to which Plaintiffs are entitled under the complaint will be mostly or entirely obviated. See 735 ILCS 5/ Moreover, following any decision issued by the Appellate Court, the appeal may not be concluded, and the Appellate Court s ruling may not be final. Depending on the Appellate Court s decision, the losing parties will have the right to appeal to this Court or the right to seek leave to appeal. Until any appeal or other relief sought by any of the parties is resolved by this Court, Defendants may be free to proceed with the unconstitutional and illegal funding of HB 40, potentially resulting in the loss of millions of taxpayer dollars, and again, any relief to which Plaintiffs are entitled under the complaint may be mostly or entirely obviated. CONCLUSION For the foregoing reasons, Plaintiffs-Appellants-Movants respectfully request that this Court grant them leave to appeal, pursuant to Supreme Court Rule 302(b, or, in the alternative, that the Court enter a supervisory order directing the Appellate Court to expedite briefing and resolution of Plaintiffs appeal. Respectfully submitted, /s/peter Breen One of the Attorneys for Plaintiffs 7

26 Peter Breen Thomas Brejcha Thomas Olp Thomas More Society A public interest law firm 19 S. LaSalle St., Ste. 603 Chicago, Illinois ( docketing@thomasmoresociety.org pbreen@thomasmoresociety.org tbrejcha@thomasmoresociety.org tolp@thomasmoresociety.org Counsel for Plaintiffs-Appellants Joan M. Mannix Joan M. Mannix, Ltd. 135 S. LaSalle St., Ste Chicago, IL ( jmannixlaw@gmail.com Counsel for Plaintiffs-Appellants Dawn D. Behnke Duane Young LaBarre, Young & Behnke 1300 S 8th St., Ste. 2 Springfield, IL ( rachel@lyblaw.com Counsel for Plaintiffs-Appellants Bradley E. Huff Graham & Graham, Ltd S 8th St Springfield, IL ( Counsel for Plaintiff-Appellant Diocese of Springfield-in-Illinois 8

27 No. IN THE SUPREME COURT OF ILLINOIS SPRINGFIELD RIGHT TO LIFE, et al., Plaintiffs-Appellants-Movants, v. FELICIA NORWOOD, Director of the Department of Healthcare and Family Services, et al., and Defendants-Appellees-Respondents, THE HONORABLE CRAIG H. DEARMOND, THE HONORABLE THOMAS M. HARRIS, THE HONORABLE JAMES A. KNECHT, THE HONORABLE ROBERT J. STEIGMANN, THE HONORABLE JOHN W. TURNED AND THE HONORABLE LISA HOLDER WHITE, Justices of the Appellate Court of Illinois, Fourth District, Respondents. ORDER Appeal from the Seventh Judicial Circuit, Sangamon County, Illinois Circuit Court No.: 2017-MR-1032 Motion for leave to appeal pursuant to Supreme Court Rule 302(b from the Appellate Court of Illinois, Fourth District, Appeal No There heard on appeal from the Seventh Judicial Circuit, Sangamon County, Illinois, Circuit Court No MR The Honorable Jennifer M. Ascher Presiding. This cause coming on to be heard on Plaintiffs-Appellants-Movants Motion For Direct Appeal Pursuant To Supreme Court Rule 302(b Or, In the Alternative, For Supervisory Order, due notice having been given and the Court being fully advised in the premises; IT IS HEREBY ORDERED that the Motion For Direct Appeal Pursuant To Supreme Court Rule 302(b be and is hereby granted/denied. IT IS HEREBY ORDERED that the Plaintiffs-Appellants-Movants alternative request for a supervisory order directing the Appellate Court of Illinois, Fourth District, to expedite Plaintiffs appeal be and hereby is granted/denied. 1