Today we continue our statistical preview of the Illinois Supreme Court’s upcoming September term with State of lllinois v. American Federation of State, County and Municipal Employees, Council 31. AFSCME poses a question with potentially significant ramifications across a range of cases: are the State’s contractual promises in contracts with its employee unions conditional on the Legislature actually appropriating the necessary funds? Our detailed summary of the underlying facts and lower court rulings in AFSCME is here.
In 2008, the State agreed to a four-year collective bargaining agreement with AFSCME. The CBA provided for small twice-yearly wage increases in 2009, 2010 and 2011. AFSCME ultimately agreed to defer the mandated wage increases in 2009 and 2010 in light of the State’s budget woes. In early 2011, then-Governor Quinn proposed a budget which included sufficient appropriations to fund the required raises for that year. But the legislature ultimately appropriated enough money to finance the raises for employees at only 14 agencies.
AFSCME sought arbitration, arguing that the State had a contractual duty to pay the mandated increases. The State responded that it had no contractual duty to perform unless and until the legislature appropriated the funds. The arbitrator ordered the increases paid.
The State filed a complaint seeking to vacate the award. In the weeks that followed, the legislature made supplemental appropriations, and several agencies experienced enough attrition to pay the required raises to the remaining employees. Employees in six agencies remained without the increases. The trial court held that the contract was invalid unless the legislature appropriated the funds, but ultimately found that the agencies had enough money to partially perform. While that decision was on appeal, the State reached an agreement with the union to withdraw the appeal, but the Attorney General refused to do so. The Appellate Court reversed, rejecting the State’s argument that its contractual promises were contingent on legislative appropriations.
Like Blumenthal, which we previewed yesterday, AFSCME comes to the Supreme Court from the Cook County Circuit Court. Cook County has consistently accounted for a portion of the Court’s civil docket roughly equal to the County’s share of the State’s population, amounting to 45.1% of the docket for the period of 2000-2014.
Since the decision in AFSCME has potential implications for the ongoing battle over employee pensions, let’s take a look at the data for both government and public pension cases. The Court has reviewed 16 conservative Appellate Court decisions – largely decisions in favor of government entities – and 23 liberal decisions. The Court’s grants among public pension cases are more evenly distributed – the Court has granted leave to appeal nine decisions in favor of employers and ten in favor of employees. The Court has reversed only 37.5% of conservative decisions involving government parties, but has reversed 56.5% of liberal decisions favoring people suing the government. The Court has reversed two thirds of public pension cases decided below in favor of employers, and exactly half of the decisions in favor of employees.
The Appellate Court decision reversing the Circuit Court comes from the Second Division of the First District. Division Two has been reversed at a rate somewhat higher than the statewide average in recent years. During most of those years, the Court’s decisions have averaged below three – and sometimes below two – votes to affirm.
We turn next to the Justices’ individual voting records for possible insight on how AFSCME might be resolved. Justice Kilbride has voted to reverse 46.2% of all conservative decisions involving the government from the Appellate Court. Justices Thomas, Karmeier, Theis, Chief Justice Garman and Justice Freeman have each voted to reverse between thirty and forty percent of conservative government law decisions (38.5%, 33.3%, 33.3%, 33.3%, 30.8%). Justice Burke has voted to reverse 28.6% of all conservative decisions.
The Justices’ voting records on liberal Appellate Court decisions (generally, plaintiffs suing the government) are in line with the overall data discussed above. Any reasonable path for the State to four votes for reversal would likely have to include the Chief Justice and Justices Thomas and Karmeier, who have voted to reverse 66.7%, 68.8% and 80% of liberal government law decisions. Justices Kilbride, Theis and Burke have frequently voted to reverse in such cases as well (70.5%, 80% and 62.5%, respectively). Only Justice Freeman has split his votes, voting to reverse 52.9% of the liberal Appellate Court decisions he has participated in involving government law issues.
Meanwhile, only Justice Burke has voted for the employers’ side in more than 50% of the Court’s public pension cases (58.3%). Chief Justice Garman and Justices Freeman, Karmeier and Thomas have all voted for the employer in slightly over forty percent of cases (47.1%, 44.4%, 42.9%, 41.2%). Justices Kilbride and Theis have voted for employers the least often – 29.4% for Justice Kilbride and 25% for Justice Theis.
Join us back here next week as we resume our study of the data from the Court’s oral arguments in civil cases since 2008 – does the Court tend to ask more questions in cases rising from districts of the Appellate Court?