People Ex Rel. Sklodowski v. State

642 N.E.2d 1180, 162 Ill. 2d 117, 205 Ill. Dec. 63

• Court: Illinois Supreme Court
• Decided: November 15, 1994
• Docket: 73485, 74181
• Status: Published

Opinions

JUSTICE McMORROW

delivered the opinion of the court:

These consolidated appeals arise from an act of the legislature that directed the transfer of moneys from certain special funds in the State treasury to the general revenue fund, as part of an effort to balance the State’s budget for fiscal year 1992. The named plaintiffs, participants in the five retirement systems funded by the State, seek review of the circuit court’s denial of their motion for a temporary restraining order that would have prevented the State comptroller from transferring the money. Plaintiffs also seek to disqualify the Attorney General, on grounds of conflict of interest, from acting as legal representative of three of the retirement systems, which are nominal defendants in this litigation.

We affirm the circuit court’s denial of plaintiffs’ motion to disqualify the Attorney General in appeal No. 74181. Because the injunctive relief requested in appeal No. 73485 is no longer available, and the constitutional issues raised in the interlocutory appeal remain at issue in the litigation pending before the circuit court, we dismiss appeal No. 73485 for lack of justiciability.¹

BACKGROUND

Plaintiffs are participants in and beneficiaries of the five retirement systems funded by the State of Illinois under the Illinois Pension Code (Ill. Rev. Stat. 1991, ch. 108½, par. 1 — 101 et seq.): the General Assembly Retirement System; the State Employees’ Retirement System of Illinois; the State Universities Retirement System; the Teachers’ Retirement System of the State of Illinois; and the Judges Retirement System of Illinois. Defendants are the State of Illinois, the Governor, the Comptroller, the Speaker of the House of Representatives, the President of the Senate, and the Treasurer. Nominal defendants are the trustees of the five retirement systems.

The instant, interlocutory appeal is ancillary to litigation currently pending in the circuit court and cannot be fully understood without reference to that litigation. In 1991 plaintiffs filed a mandamus action on behalf of themselves and a putative class consisting of all participants in and beneficiaries of the five retirement systems. Their complaint challenged the State’s failure to comply with certain provisions of the Pension Code by "knowingly budgeting, appropriating and paying State contributions of less than the minimum amounts required by P.A. 86 — 273, and failing to reduce the unfunded pension liability of the [five retirement systems].” According to the complaint, each of the five retirement systems has been "significantly underfunded for many years; that is, each Fund has had assets totalling substantially less than 100% of the present values needed currently, based upon actuarial assumptions, to fund all existing Fund obligations.” The legislature sought to remedy this underfunding by passing, in October 1989, legislation that required the State to increase its contributions to each of the five retirement systems by equal increments in each of the following seven years, in certain minimum amounts designed to meet the "normal cost” of the retirement funds (the increased and additional accrued benefits), plus amortize each fund’s unfunded liability over 40 years.

Plaintiffs’ mandamus complaint further alleged that despite the enactment of this remedial funding measure, the Governor in each year following 1989 has budgeted a lesser amount than the minimum contributions required by law and the legislators have similarly appropriated lesser amounts than required by law. According to compliance reports issued for each of the five retirement systems, there existed at the time of the filing of the 1991 mandamus complaint a combined deficit in these minimum contribution requirements that exceeded $500 million. Overall, plaintiffs charge, the "aggregate unfunded accrued actuarial liability” of the five retirement systems exceeds $10 billion, according to audit reports for the fiscal year 1991.

First Emergency Budget Act, Public Act 87 — 14

While plaintiffs’ mandamus action was pending, the Governor and the legislature adopted a budget for fiscal year 1992, which was discovered to be $50 million short of the amount needed to balance the budget as required by the Illinois Constitution of 1970. (Ill. Const. 1970, art. VIII, § 2.) To remedy the shortfall, the legislature enacted the Governor’s First Emergency Budget Relief Act (Pub. Act 87 — 14, eff. July 24, 1991) purporting to delegate to the Governor the authority to transfer up to $50 million from any of the special funds in the State treasury to the general revenue fund. Acting on this authority, the Governor directed the Comptroller to transfer $42 million from certain special funds to the general revenue fund. Of this amount, $21 million was to be transferred from the State Pensions Fund.

In response to the Governor’s directive to the Comptroller, to transfer $21 million from the State Pensions Fund to the general revenue fund, plaintiffs immediately sought entry of a temporary restraining order. Shortly thereafter, plaintiffs amended their mandamus complaint to add a count for injunction against the transfer and a count for declaratory relief as to the constitutionality of Public Act 87 — 14. Plaintiffs’ emergency motion for a temporary restraining order (TRO) was granted on August 5, 1991, but later dissolved upon the circuit court’s denial of plaintiffs’ motion for preliminary injunction. The circuit court stayed dissolution of the TRO, however, to enable plaintiffs to seek relief in the appellate court through a motion for stay pending review of the interlocutory appeal from the denial of the TRO. The appellate court denied the motion, but the circuit court extended its stay to permit plaintiffs to seek review in this court.

In September 1991, this court granted direct appeal (No. 72451) and stayed, pending appeal, the transfer of the $21 million from the State Pensions Fund to the general revenue fund. Plaintiffs’ challenge to the transfer purportedly authorized by Public Act 87 — 14 was twofold: (1) allowing the Governor to determine the source and amount of money to be diverted from the special funds was an unconstitutional delegation of the legislature’s power of appropriation; and (2) the diversion of the pension fund money to nonpension purposes, especially in light of the billions of dollars of unfunded liability, was an impairment of pension benefits prohibited by the State and Federal Constitutions.

Second Emergency Budget Act, Public Act 87 — 838 Before this court rendered a decision in appeal No. 72451, the legislature abandoned Public Act 87 — 14 and enacted in its stead Public Act 87 — 838, which was titled the Emergency Budget Act of Fiscal Year 1992 (Pub. Act 87 — 838, eff. January 24, 1992). This Act directed the transfer of moneys from 39 special funds to the general revenue fund. To implement these transfers, Public Act 87 — 838 amended provisions of the various statutes that governed the use of the special funds.

The source of the moneys in the State Pensions Fund is unclaimed property that escheats to the State by law. Pursuant to a provision of the State Finance Act:

"The moneys in the State Pensions Fund shall be used exclusively for the administration of the 'Uniform Disposition of Unclaimed Property Act’, *** and for the reduction of the accrued actuarial reserve deficiency in each of the annuity and benefit funds established under the [five retirement systems in issue in the instant case].

*** [T]he moneys so appropriated from the State Pensions Fund shall be applied exclusively for the reduction of the accrued actuarial reserve deficiencies occasioned by the inadequacies of the appropriations heretofore made to such funds.” Ill. Rev. Stat. 1991, ch. 127, par. 144.12.

To permit the transfer of the $21 million from the State Pensions Fund, Public Act 87 — 838 amended the above statute by adding the following paragraph:

"In addition to any other permitted use of moneys in the [State Pensions] Fund, and notwithstanding any restriction on the use of the Fund, moneys in the State Pensions Fund may be transferred to the General Revenue Fund as authorized by this amendatory Act of 1992. The General Assembly finds that an excess of moneys exists in the Fund. On February 1, 1992, the Comptroller shall order transferred and the Treasurer shall transfer $21,000,000 *** from the Fund to the General Revenue Fund.” Pub. Act 87 — 838, § 270, eff. January 24, 1992.

Following the legislature’s enactment of Public Act 87 — 838, defendants filed a motion in this court to dismiss the interlocutory appeal in No. 72451 on the ground that plaintiffs’ challenge to the transfer authorized by Public Act 87 — 14 had been mooted by the legislature’s abandonment of that act. In April 1992, this court granted defendants’ motion to dismiss and vacated its previous order that had stayed the circuit court’s dissolution of the TRO pending appeal. At that time, the new act was not in issue before this court.

Subsequently, plaintiffs returned to the circuit court to seek a TRO against the transfer of the Pension Fund moneys pursuant to the newly enacted Public Act 87— 838. Plaintiffs’ motion for TRO against the transfer authorized by the new act rested on two points:

(1) "[T]he transfer to nonpension purposes of existing money in the State Pensions Fund is an impairment of pension benefits and contract rights prohibited by [the State and Federal Constitutions], and the new Act does not address and continues to violate the Plaintiffs’ constitutionally-protected pension and contract rights”; and

(2) "the legislative finding upon which the transfer is based — that the monies in the State Pension Fund are excess monies — is totally contradicted by fact and therefore unreasonable, arbitrary and capricious.”

The circuit court denied plaintiffs’ motion for a TRO, but certified an issue for interlocutory appeal by permission, pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The certified question was whether the transfer of $21 million pursuant to Public Act 87 — 838 violated certain provisions of the Illinois or Federal Constitutions. In certifying the question the court made the requisite finding under Rule 308 that its order involved a question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation.

Plaintiffs did not perfect their interlocutory appeal pursuant to Rule 308; instead, they filed in the appellate court a notice of interlocutory appeal as of right, pursuant to Rule 307(a), from denial of their motion for a TRO. Simultaneously, plaintiffs filed in this court a motion for direct appeal and a motion to enjoin defendants from transferring the $21 million under the auspices of Public Act 87 — 838. In May 1992, this court granted direct appeal but denied plaintiffs’ motion to restrain the transfer of moneys from the State Pensions Fund to the general revenue fund. Subsequently, the transfer took place. Defendants thereafter moved to dismiss the instant appeal as being moot. Defendants’ motion to dismiss was denied.

ANALYSIS

I.

Attorney General’s Representation of Nominal Defendants

In appeal No. 74181, plaintiffs appeal from the circuit court’s order denying plaintiffs’ motion to disqualify the Attorney General, on grounds of conflict of interest, from representing three of the retirement systems, which are nominal defendants, as well as the State defendants. The State defendants maintain their right to divert funds from the State Pensions Fund to the general revenue fund. This position runs counter to the interest of the retirement systems to prevent the State from evading its mandate to restore the State Pensions Fund to sound financial footing. Accordingly, plaintiffs contend, the Attorney General cannot properly represent both the State defendants and the retirement systems.

In the instant case, two of the retirement systems are being represented by independent private counsel appointed as special assistant Attorneys General. We approve of this procedure, which clearly removes the taint of perceived conflict. Plaintiffs have no objection to the representation of special assistant Attorneys General but object to the Attorney General’s continued representation of the remaining three retirement systems.

The Attorney General’s power and duties as the legal officer of the State underlie the nature of his counsel in this case. (See Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 398-99.) The Illinois Constitution of 1970 requires the Attorney General to represent the State, and this duty extends to the representation of State agencies. (Environmental Protection Agency, 69 Ill. 2d at 399.) Moreover, as long as the Attorney General is not an actual party, or interested as a private individual, he or she may represent opposing State agencies in a legal dispute. (Environmental Protection Agency, 69 Ill. 2d at 401.) That is so because the Attorney General serves the broader interests of the State rather than the particular interest of any agency.

We believe that the Attorney General in this case properly represents the interests of the State defendants acting in their official capacities. In the role of counsel to the State, the Attorney General may represent the three retirement systems as entities of the State, which receive State moneys for the payment of pension benefits to State employees. However, that is not to say that the Attorney General is representing the interests of the participants in and beneficiaries of the five retirement systems; clearly, plaintiffs and their counsel are representing the interests of the persons for whom the funds were established. While there is an apparent conflict between the interests of the State defendants (to divert the pension funds to other uses) and the responsibilities of the retirement systems (to regain financial stability in order to meet current and future pension obligations), we do not believe that the Attorney General’s legal representation of three of the retirement systems will result in prejudice to any of the parties to this litigation. Plaintiffs are seeking relief on behalf of themselves and the class of people who are participants in or beneficiaries of the five retirement systems. To the extent plaintiffs’ interests are coextensive with that of the nominal defendants, the retirement systems, plaintiffs are capable of continuing their advocacy unaffected by the Attorney General’s representation. If plaintiffs prevail in their lawsuit the recovery would run to the retirement systems.

We also note that none of the three retirement systems in issue have joined in plaintiffs’ motion to disqualify the Attorney General or otherwise objected to his representation in this lawsuit, notwithstanding an ambiguous vote of the trustees of one of the affected systems to engage "outside” counsel. The vote to engage other counsel did not, ultimately, carry. We hold that the circuit court did not err in denying plaintiffs’ motion to disqualify the Attorney General.

II.

Denial of Motion for Temporary Restraining Order

The primary relief that plaintiffs seek in this court is reversal of the trial court’s denial of their motion for a TRO on the ground that Public Act 87 — 838 is unconstitutional, for the following reasons: (1) the Act is an invalid attempt to amend a substantive law by an appropriations bill; (2) alternatively, if the Act is viewed not as an appropriations bill but as a substantive bill, it violates the "single-subject” rule of the Illinois Constitution; (3) the State’s transfer of moneys from the State Pensions Fund to the general revenue fund is an unconstitutional impairment of pension benefits; and (4) even if Public Act 87 — 838 did not impair plaintiffs’ pension contract rights, the legislative finding of "excess moneys” in the State Pensions Fund was an irrebuttable presumption that violated the plaintiffs’ right to due process.

Defendants challenge the justiciability of the controversy at bar, asserting that the plaintiffs lack standing to sue and that the appeal is moot because the transfer of funds has occurred. In addition, defendants interpose a waiver issue premised on the fact that plaintiffs do not specifically argue that the trial court abused its discretion in denying the motion for a TRO. Reaching the merits, defendants contend that Public Act 87 — 838 is a valid, substantive enactment of the legislature, not a true appropriation, and that the current members of the General Assembly are not bound by decisions of prior legislators with respect to the use of public funds in special accounts. Further, defendants contend that the Illinois Constitution’s pension contract clause does not endow members of retirement systems with a contractual right to require a specific level of funding, and therefore the alleged diminution of pension funds is not an unconstitutional impairment of contract rights. Defendants also argue that plaintiffs do not have a contractual right to the use of the State Pensions Fund, notwithstanding language in the State Finance Act that dedicates the proceeds of unclaimed property to the reduction of accrued actuarial reserve deficiencies in the State retirement systems. Finally, defendants state that the legislative finding of excess funds in the State Pensions Fund was not inaccurate under the circumstances and does not afford plaintiffs a base upon which to attack the validity of the Act.

This court finds itself in the untenable position of reviewing plaintiffs’ vital constitutional challenges in the context of an interlocutory appeal from the denial of a motion to enjoin State officials from undertaking acts that the legislature and chief executive officer of this State deemed necessary to balance the budget of the State of Illinois for fiscal year 1992. The judicial branch of the government is not charged with political or legislative decisionmaking and its role in the government’s balance of powers has certain defined limits. One of these limits is refraining from striking down legislation unless it offends the State or Federal Constitutions. We agree with plaintiffs that the judicial branch of government must ultimately decide whether the challenged provision of Public Act 87 — 838 is constitutionally sound. However, we agree with defendants that the specific, much narrower issue on appeal — whether the transfer of $21 million should have been temporarily enjoined by the circuit court — has been rendered moot by the actual transfer of the funds in question.

Plaintiffs urge this court to apply the public interest exception to the mootness doctrine (see, e.g., People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622) because there is a substantial public interest in this court’s determination of the validity of the transfer and the issue may recur at any time the legislature faces another shortfall and must search for funds to balance the budget.

Plaintiffs’ contention is not without merit; however, a basic tenet of justiciability holds that "[reviewing courts will not decide moot or abstract questions or render advisory opinions. Courts of review ordinarily will not consider issues where they are not essential to the disposition of the cause or where the result will not be affected regardless of how the issues are decided.” (Barth v. Reagan (1990), 139 Ill. 2d 399, 419; see also Condon v. American Telephone & Telegraph Co. (1990), 136 Ill. 2d 95, 99 (reviewing courts will not consider issues merely to establish precedent).) Moreover, this court will not address constitutional issues that are unnecessary for the disposition of the case under review (Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 499), even though the court acquires jurisdiction of the case because a constitutional question is involved (Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 22).

In the instant case, our opinion as to the validity of the transfer of funds will not affect that which has already occurred — the transfer of $21 million out of the State Pensions Fund pursuant to the Emergency Budget of Fiscal Year 1992. However, our opinion on certain of the constitutional issues raised — particularly those concerning the impairment of plaintiffs’ pension contracts — might influence or even foreclose the circuit court from deciding similar issues that are currently pending in that court. The purpose of temporary injunctive relief is to prevent a threatened wrong or injury pending a full hearing on the merits, not to finally adjudicate the merits. (See Toushin v. City of Chicago (1974), 23 Ill. App. 3d 797, 801; Spencer v. Community Hospital (1975), 30 Ill. App. 3d 285, 287-88.) In Spencer, the plaintiff doctor sought preliminary injunctive relief to prevent the defendant hospital board from holding a disciplinary hearing. The circuit court denied plaintiff’s motion and the hearing took place. Subsequently, the appellate court dismissed the appeal as moot, but stated, "The finding of the trial court denying the preliminary injunction is not dispositive of the merits of the case, and plaintiff is not foreclosed from a full and complete hearing on all the issues contained in the complaint. [Citations.]” (Spencer, 30 Ill. App. 3d at 287-88.) The Spencer court further recognized that because the appeal was from a denial of preliminary injunction, the "sole question for review [was] whether the trial court abused its discretion.” (Spencer, 30 Ill. App. 3d at 287.) We conclude that, in the instant case, the circuit court retained substantial discretion in declining to enter the TRO at that stage of the proceedings. Plaintiffs’ assertion of constitutional challenges did not compel the trial court to grant or deny temporary injunctive relief. As the Toushin court stated, "While the [constitutional challenge to the ordinance in question] is a serious one [citation], normally an attack on the constitutionality of a statute should not be resolved upon application for a temporary injunction. [Citations.]” (Emphasis added.) Toushin, 23 Ill. App. 3d at 803.

We acknowledge the seriousness of the plaintiffs’ constitutional challenges to the transfer of funds pursuant to Public Act 87 — 838, but we believe that the merits of those challenges should be resolved in the first instance by the circuit court in its adjudication of the plaintiffs’ suit for mandamus, declaratory judgment, and other relief. By its nature, provisional injunctive relief of the type sought in the instant appeal depends on numerous equitable concerns and is not available as a matter of right. We caution, however, that our decision to dismiss the earlier appeal and the instant appeal, for want of justiciability, is not to be taken as a judicial finding that the legislation in issue is constitutional.

Plaintiffs persist in urging this court to reach the merits of the appeal, for another reason: the circuit court, in denying their motion for a TRO, rejected their contention that Public Act 87 — 838 is unconstitutional. Therefore, plaintiffs contend, our dismissal of the appeal lets stand the circuit court’s ruling and defeats plaintiffs’ ability to obtain review of their constitutional challenges to the transfer of moneys from the State Pensions Fund to the general revenue fund. Apparently, plaintiffs are concerned that the circuit court based its order on the belief that the transfer of funds was not prohibited by the impairment of contracts clauses of the State and Federal Constitutions. According to plaintiffs, the circuit court arrived at that conclusion based on its interpretation of this court’s opinion in People ex rel. Illinois Federation of Teachers v. Lindberg (1975), 60 Ill. 2d 266.

Lindberg involved the Governor’s authority to reduce appropriations set by the legislature to alleviate underfunding in several teacher pension funds. This court upheld the Governor’s constitutionally derived authority to reduce appropriations and further noted that the participants in the State-funded teachers’ pensions were not constitutionally entitled to specific levels of funding.

While we express no opinion regarding Lindberg’s application to the merits of the instant case, we do not believe that the circuit court’s denial of temporary injunctive relief is in any way determinative of that court’s ability to reach a final adjudication of the merits of plaintiffs’ pending lawsuit. If plaintiffs prevail on all or part of their case, the circuit court is the proper body to fashion whatever relief may be appropriate. The issues that have been framed in the instant appeal appear to differ significantly from the issue decided in Lindberg. We cannot assume that plaintiffs have been precluded by the circuit court’s remarks from fully presenting and arguing the merits of their claims. (See Spencer, 30 Ill. App. 3d 285.) In the case at bar, the circuit court denied the motion for a TRO at a time when plaintiffs had not yet amended their complaint to add a count specifically directed at the newly enacted Public Act 87 — 838. The circuit court had the benefit of some, but not all, of the constitutional arguments that the parties have subsequently developed as part of this appeal. For that reason we decline to render what can only be an advisory opinion, in light of the fact that the transfer of funds authorized by Public Act 87 — 838 has occurred and can no longer be enjoined. All other issues remain in the circuit court and are for that court to decide in the first instance, after full consideration of the merits.

For the reasons set forth, we affirm the decision of the trial court in No. 74181, and we dismiss the appeal from the denial of the TRO in No. 73485.

No. 73485 — Appeal dismissed.

No. 74181 — Affirmed.

1 The majority opinion and the dissenting opinion refer to the underlying complaint for mandamus and declaratory relief as pending in the circuit court. However, subsequent to the hearing of the instant, interlocutory appeal from denial of temporary injunctive relief, the circuit court dismissed the underlying complaint. The dismissal was not a part of the record in this appeal. Plaintiffs filed notices of appeal from the circuit court’s dismissal order with respect to their mandamus and declaratory judgment suit. There is now pending in the appellate court a consolidated appeal from the circuit court’s dismissal judgment. This change in the procedural status of the underlying litigation is immaterial to our disposition of the issues raised in the instant appeal.