The state of the State

Thompson takes the courts to court

by DIANE ROSS

ON FRIDAY, May 14, the legislature had wound up its week by resolving an unexpected fiscal dilemma brought on by a court ruling, and most legislators were leaving for home by midday. Pleased with the legislative action resolving the dilemma that threatened his fiscal 1982 budget, Gov. James R. Thompson was still miffed with the court. That afternoon he surprised more than a few observers by suddenly raising the issue of separation of powers. He went on to chastise the judiciary, in the strongest possible terms, for attacking the legislature and himself, the chief executive.

When the General Assembly had convened on Tuesday, May 11, the situation was this: a Cook County Circuit Court judge had ruled that Thompson needed legislative authorization before his Department of Public Aid (DPA) could attempt to control costs by cutting General Assistance benefits. Unless legislators acted quickly, that ruling threatened to push public aid costs up approximately $20 million.

The judge, in this case, was reminding Thompson and the General Assembly of something they apparently preferred to forget in what has become the worst fiscal year in recent memory. Public aid, under current law, is an entitlement program. If a client qualifies, he or she is entitled to the benefits set by law.

For DPA to avoid spending the $20 million this fiscal year, the General Assembly would have to pass a bill to lower the benefit level. Although it took three days of legislative politicking, Thompson got his lower benefit level passed into law. Only hours before the General Assistance checks were scheduled to be mailed the House concurred with the conference committee report agreed to by the Senate.

Reporters weren't surprised that afternoon when Thompson, visibly relieved, called an impromptu news conference to thank the General Assembly for averting a fiscal crisis in the nick of time. But even the session-weary press corps was startled when Thompson went on to accuse the judiciary launching an assault on the fiscal powers of the legislative and executive branches, an attack on the constitutional system of checks and balances: "... I believe that we are beginning to witness an attempt on the part of some in the judiciary to substitute their opinions, unfounded in law, for the power of the governor to propose a budget, the power of the General Assembly to pass one and the governor to execute the laws. I see a trend developing in the circuit courts on this very fundamental issue of who does what under the Constitution and want it decided and decided now.

"If this state is to survive bankruptcy," Thompson went on, "I can't have every circuit court judge in the state looking over my shoulder, or over the General Assembly's shoulder, sub stituting his views of what we ought to

do, and how much money we ought to appropriate for what purpose, for the views of the people who are elected by the people of the State of Illinois to make those budgetary and executive determinations."

The courts have ruled in about a dozen cases during the last six years where the effect has changed planned state spending. This latest public aid decision, however, was apparently the last straw. Thompson told reporters that his lawyers were consolidating the appeals; he would take his case directly to the Illinois Supreme Court.

Apparently, Thompson sees these decisions as irresponsible court orders with which the state cannot afford to comply, especially with the economy in recession. In effect, Thompson is saying: What is the state expected to do if it comes down to a question of paying and going bankrupt or cutting back and staying solvent?

Under attack from many quarters, Thompson could well gain some bipartisan support in the General Assembly on the issue — if he forces a ruling by the state's high court before the November election. Thompson's move is shrewd; his argument is that when the courts rule against his execution of a budget, they are also ruling against the legislature's enactment of that budget.

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Illinois' 1970 Constitution clearly delegates fiscal power to the governor and General Assembly under Article III, Section 2. And the Constitution clearly admonishes both branches to keep spending under revenue.

Thompson is arguing that the separation of powers issue hinges on the validity of the constitutional system of checks and balances. When the recession finally hit state government last July, Thompson was forced to cut his fiscal 1982 budget again and again, and, ultimately, the General Assembly appropriated even less than Thompson's budget.

Thompson repeated his criticism of the courts May 20, when another Cook County Circuit Court judge issued an injunction prohibiting the state from closing its mental health facility in Dixon: "I want the Supreme Court to tell me and tell the General Assembly just who is running the state," Thompson said. "If the judges are going to write the budget, let them come here right now and I'll take the next five weeks off. This is baloney."

Then, the next day, Friday, May 21 — exactly a week after the General Assembly had authorized Thompson's Department of Public Aid to cut General Assistance benefits — the same Cook County Circuit Court judge who had ruled earlier in that case, struck down the new authorization.

Whatever the outcome on that case, Thompson is clearly insistent that the state's high court act to settle the large issue quickly. As William O'Connor, Thompson's chief legal counsel, said, "Justice delayed is justice denied, for state as for anyone else."

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