The Illinois Supreme Court’s recent refusal to hear a challenge to a state abortion funding law has raised questions over the court’s willingness to force the state legislature ever to abide by the balanced budget requirements spelled out in the state constitution and Illinois law.
In late March, the Illinois Supreme Court declined the petition of a group of pro-life organizations and others to hear arguments in the appeal of an appellate court’s decision to let stand a controversial law requiring the state to use tax revenue to pay for abortions for Medicaid recipients.
While the taxpayer funding of abortions garnered the initial headlines around the legislation known as House Bill 40, the court challenge to the law, filed first in Sangamon County court in Springfield, centered on the General Assembly’s refusal to identify where the money to pay for the abortions was coming from.
The court challenge asserted this violated both a state balanced budget law and the state constitution itself, which requires lawmakers to roughly balance the state’s annual expenses against its expected revenues from taxes and other sources.
However, a Sangamon County judge rejected those arguments. And the judge was backed by the Illinois Fourth District Appellate Court.
That court found state lawmakers’ lack of fiscal responsibility surrounding the issue “problematic,” but said it wasn’t enough for the courts to step into a political question over how to spend Illinois’ money.
The plaintiffs appealed to the state Supreme Court, but the justices in a surprise move simply declined to hear arguments. The move drew a rare dissent from a group of three justices – Republican Robert Thomas and Democrats Thomas Kilbride and Anne Burke – who criticized the majority for ducking the issues altogether.
In the dissent authored by Thomas, the justices said the “bona fide” legal controversy over the General Assembly’s perceived flouting of their obligations under the state constitution should have ticketed this case for a hearing before the full court.
The three dissenters said it should be the Supreme Court’s obligation to decide if “some action denominated ‘political’ exceeds constitutional authority.”
The last time a state Supreme Court justice issued such a dissent to the court’s silence to a petition came when current Chief Justice Lloyd Karmeier objected to his colleagues’ refusal to issue requested guidance following their decision rejecting a citizen-initiated attempt to amend the state constitution to restrict gerrymandering and reform the state’s legislative redistricting process. In that case, the court’s majority had also sided with allies of the General Assembly’s Democratic majority leaders.
Peter Breen, an attorney and former Illinois state representative, helped lead the legal challenge through the Thomas More Society, of Chicago, which represented the plaintiffs.
Breen could not be reached for comment, as a spokesman for the Thomas More Society said Breen was out of town attending to other litigation-related matters.
However, in an article published April 1 by the Decatur Herald-Review, Breen said the court’s obligation to take up the question “is not a partisan issue and it’s not an ideological issue.”
In the article, Breen is reported to have said: “In a state like ours, the issue of whether a budget must be balanced is of grave importance to the people and I desperately hole the Supreme Court will take up the issue of whether the people of Illinois meant what they said in the (Illinois state) Constitution – that the budget has to be balanced.”
The controversy centers on language in Article VIII of the Illinois state constitution. The article requires the governor to “prepare and submit” a state budget for each year.
But Article VIII further says: “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.”
While the language appears to be a mandate on its face, Carolyn Shapiro, a law professor at Chicago Kent College of Law, who specializes in constitutional law, said the language does not necessarily require the General Assembly to justify spending.
Currently, she noted, the state spends by appropriating large sums of money to various state departments, agencies and offices. From there, the offices and agencies receiving the money actually spend the money on specific programs, personnel and services.
Shapiro noted the appellate court relied heavily on this aspect of state government to determine the case posed a “political question,” as the constitutional language required lawmakers to balance total spending against revenue, not spell out exactly how every approved expenditure would be funded.
To decide differently, she said, could “open the door to challenges of all appropriations done in a lump sum manner,” an outcome the court wished to avoid.
Shapiro also noted the appellate decision came not in the form of an opinion, but rather as an “unpublished order,” which was issued under Supreme Court Rule 23. The rule allows courts of appeal to issue such orders, instead of opinions. However, such unpublished orders are, in turn, generally prohibited from being cited as precedent in later court cases.
While the court’s reasoning remains available to be read, the decision can’t be used by the state to attempt to shut down a later challenge to state spending under the constitutional budget language. She said either party in the case can ask the court to later make the order a citable opinion. To date, the decision remains “unpublished.”
Shapiro said the Rule 23 nature of the case likely also weighed against the court deciding to take it on.
“The Supreme Court is under no obligation to take every case that alleges a government entity violated some aspect of the constitution,” she said.
Kent Redfield, political science professor at the University of Illinois’ Institute of Government and Public Affairs, however, said he believed the Supreme Court’s majority “ducked” on the question.
Even if the high court ultimately affirmed the Fourth District Appellate court’s findings, Redfield said an apparent relative lack of cases on the constitution’s budget requirements should have triggered a hearing to deal with the underlying question of just what the constitutional language requires of lawmakers.
“That’s the issue,” Redfield said. “Does that language really mean anything?”
As Redfield sees it, the balanced budget language has to this point not been enforced by the courts, as the courts has deferred to the General Assembly to set spending.
That stands in marked contrast to the Supreme Court’s repeated willingness to dive headlong into the question of pension reform, finding the state constitution’s so-called “pensions clause” prohibits nearly every attempt at reform, no matter the political impact or mandate placed upon lawmakers as a result.
Redfield said the problem with the budget language is the lack of any real, enforceable requirements placed on the General Assembly.
While the language appears plain in its meaning, Redfield said it is relatively “weak,” particularly when compared to other sections of the constitution, such as the pensions clause.
“It would appear you’ve got something here that seems a lot more impressive than it is,” he said.
For that reason, Redfield said, the Supreme Court likely owed an obligation to everyone involved and to the people of Illinois to “write an opinion and be more specific,” than simply not saying anything at all.
“This is an unsatisfying result, for sure,” he said.