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CAPITOL RECAP: Mask mandate appeal heads to high court; new legislative watchdog moves in

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SPRINGFIELD – The Illinois Supreme Court is being asked to review the state’s mask mandate and other COVID-19 mitigation orders for K-12 schools on an expedited schedule.

Attorney General Kwame Raoul filed a petition for appeal Tuesday, along with a motion for an emergency stay of a Sangamon County judge’s order to block enforcement of the rules.

On Feb. 4, Sangamon County Circuit Judge Raylene Grischow issued a temporary restraining order blocking enforcement of the rules which, among other things, require schools to exclude students or staff from their buildings if they have been in close contact with someone who has COVID-19, and require unvaccinated staff to undergo testing at least once a week.

In her ruling, Grischow cited a section of the Illinois Department of Public Health Act that says people may not be quarantined without their consent or a court order and concluded that the mitigation mandates amounted to a kind of quarantine.

Two weeks later, a three-judge panel of the 4th District Court of Appeals declined to review that decision, saying the issue was “moot” because, in the intervening time, the legislature’s Joint Committee on Administrative Rules voted not to extend the Illinois Department of Public Health’s emergency rules that put those mandates in place.

The appeal comes just days before Gov. JB Pritzker’s administration is scheduled to lift the statewide indoor mask mandate Feb. 28 for most public places, except in schools and health care settings. Pritzker has said he intends to lift the school mandate as well, possibly within the next few weeks, saying schools need more time because of the large number of unvaccinated children in the buildings and the close proximity in which they work.

Asked Wednesday why the administration continues to appeal the case, Pritzker said he thinks it’s important to clarify the powers of the governor and state agencies in case of another public health emergency.

In his appeal, Raoul’s office also argued that there needs to be clarity because different appellate courts have ruled differently on the same question.

The state is asking for a schedule that would allow for oral arguments as soon as the week of March 20.

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REVENUE WINDFALL: A House revenue committee on Thursday heard projections of an Illinois economy that is steadily moving back toward a level of pre-pandemic normalcy, which means revenue spikes realized due to temporary changes in consumer spending habits and federal stimulus packages are expected to subside. 

Illinois Department of Revenue Director David Harris characterized the COVID-19 pandemic as a “black swan event” which sent state revenues tumbling by $400 million in 2020.

But in response to that so-called black swan event, consumers nationwide shifted to purchasing more goods than services, and the federal government provided direct financial payments to Americans and expanded unemployment insurance benefits.

That sparked a near two-year period of substantial state revenue growth, partially because Illinois taxes goods, but not most services, so the redistribution of spending correlated directly to a rise in sales tax revenue. As well, unemployment benefits are taxable by the state, and many individuals who collected enhanced federal benefits saw greater income levels than before the pandemic.

The windfalls in the big three revenue sources – individual and corporate income tax and sales tax – created unprecedented, at least in modern times, flexibility for Gov. JB Pritzker to craft a budget for the upcoming year that dedicates surpluses to paying down old debts. Negotiations on a final budget continue in the General Assembly.  

The Commission on Government Forecasting and Accountability expects state coffers will have taken in $48.5 billion by the end of the fiscal year, up from a $44.4 billion projection in the budget that lawmakers approved in May. The base state revenue sources actually grew by $4.6 billion, however, because the governor’s office amended its planned use of federal funds to offset General Revenue Fund spending downward by $500 million due to the surplus.

The updated FY 22 estimates include a $1.6 billion increase in personal income tax from initial expected levels, a $1.2 billion increase in corporate income tax, and a $926 million increase in sales tax revenue.

The revenues for January alone were $1.2 billion greater than the prior year, according to COGFA.

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FY 2023 PROJECTIONS: Illinois Department of Revenue Director David Harris and other fiscal prognosticators projected that Fiscal Year 2023, which begins July 1, will continue to see a solid revenue performance, but it will also begin a period of leveling, where the last two years of fiscal breathing room trend back to normal.

COGFA’s FY 23 revenue estimate is $671 million lower than its updated FY 22 estimate, not including federal funding. Federal American Rescue Plan Act funding accounts for $1.5 billion of the FY 22 budget but no such expenditures are anticipated for FY 23 in terms of GRF replacement funding.

But representatives of IDOR, COGFA and the Governor’s Office of Management and Budget noted the picture for the upcoming fiscal year could change quickly as tensions continue amid the Russian invasion of Ukraine, which was escalating quickly at the time of the Thursday morning hearing. Sustained Russian sanctions could impact anything from energy prices to the cost of wheat, so projections will be updated as needed, according to IDOR.  

Republican lawmakers also inquired about inflation, and the budgeteers said projections generally anticipated “several months” of continued upward inflation before the trend reverses, and their current projections anticipate the inflation rate to be 7.9 percent.

As the projections stand now, according to House Majority Leader Greg Harris, who is a chief budgeteer in the chamber, the governor and the General Assembly will have the flexibility to pay down old debt and prepare the state for future fiscal downturns.

Included in the governor’s plan is an infusion of $600 million to the “rainy day” fund from the surplus in the current fiscal year, as well as $279 million from the upcoming fiscal year. That fund had been spent down to almost nothing during the budget impasse of 2015 to 2017.

The governor also proposed dedicating $898 million to pay down overdue health insurance bills. His proposal also includes spending $300 million of the surplus to pay down pension debt, with $200 million added to the statutory payment in the upcoming budget. 

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ARPA funding: Illinois directly received $8.1 billion from President Joe Biden’s stimulus plan, known as the American Rescue Plan Act, and about $3.5 billion remains unspent, according to House Majority Leader Greg Harris, D-Chicago.

He added that a working group made up of both parties as well as business and labor interests is currently discussing the plan for retiring $4.5 billion in debt to the federal government that the state incurred to keep its unemployment system running at the height of the pandemic. That borrowing has accrued $36 million of interest due by Sept. 30, according to the U.S. Treasury.

Republicans at the Thursday hearing suggested the governor reapportion his planned $1.5 billion in ARPA spending for FY 22, using it to pay down trust fund debt instead of replenishing state coffers for COVID-19-related spending.

Rep. Harris said the working group is coming up with a “menu of options” for paying down the backlog which could include ARPA funds. Generally, such a solution includes some combination of decreases to benefits, increases to employer premiums or some infusion of state, federal or private funding.

While Pritzker’s proposed FY 23 budget is largely not reliant on ARPA funds, one major proposed expenditure – $250 million for violence intervention funding – would be funded primarily by a $235 million lump sum from ARPA.

Rep. Harris said the intervention funding is often “short-term,” but the state will monitor the violence prevention program’s efficacy over the next few years as ARPA funding remains available and consider future expenditures in future budget years.

The governor’s plan to pay down debt with the one-time surplus this year could free up funds in the future, he said.

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INSPECTOR GENERAL: When Michael McCuskey walked into his new office at the Stratton Building that overlooks the Illinois State Capitol which he is charged with investigating, he had two complaints in his inbox, some empty desks and no staff.

“I’ve got nothing. No staff. No investigator. No nothing,” McCuskey said Wednesday in an interview with Capitol News Illinois.

The new legislative inspector general is primarily tasked with investigating complaints, violations, abuse of authority or other forms of misconduct by members of the General Assembly and the employees who work for them.

He’ll have a budget of $920,000 to fill out a staff that currently has a head count of zero. Those working for former LIG Carol Pope vacated the office when she did earlier this year.

McCuskey was appointed by lawmakers last week to serve the balance of Pope’s unfulfilled term. That ends on June 30, 2023 – McCuskey’s 74th birthday.  

Pope called the office a “paper tiger.” McCuskey said he needs the essentials, like someone to answer the phone, before he can surmise how to improve the technical workings of the office.

“I keep telling the press come back next year just before it becomes retention time or retirement time and ask me,” McCuskey said. “How would I know how the job is going to function when I don’t even have staff? I don’t have an investigator. I am starting from ground zero. Absolutely.”

When he faces lawmakers to make his budget request in the coming days, he said, he’ll state his intent to hire an investigator and seek to determine whether the office is up to date on its bills.

McCuskey has his own hiring authority, so filling in staff should go faster than typical state employment hiring.

One of the first positions on his list of new hires will be a secretary, he said.

Because McCuskey doesn’t type.

If anyone asks about the status of the two complaints pending in McCuskey’s office, he said, he may have to respond in a written longhand letter.

MCCUSKEY BACKGROUND: McCuskey, 73, has been a judge for all but 13 years of his 45-year legal career. He served as a federal judge for 16 years, including a stint as chief judge in the district.

He’s faced murderers, corruption and greed during his more than 30 years on the bench. He’s known for handing down tough sentences for criminal defendants, earning him the nickname “Maximum Mike.”

He once appeared on a radio show and called the University of Illinois president and other administrators “gutless” for their handling of a student protest of an appearance of then-Gov. Bruce Rauner.

He’s unapologetic about two publicly-funded pensions he receives along with the paycheck for his new public job.

“I would have earned more in a private law firm – much more,” McCuskey said. “I feel like this is where I need to be.”

He was eligible for a federal pension at his full salary of $199,100 annually when he left the federal bench in 2014. He receives $129,565 annually, $10,797 a month, from his state pension, according to the State Employee Retirement System.

In 1997, U.S. President Bill Clinton named him as his pick for bench in the U.S. District Court for Central Illinois. Although his appointment languished for eight months, McCuskey was confirmed by the Republican-held Senate, including yes votes from then-Senators Jeff Sessions, R-Alabama, and John Ashcroft, R-Missouri, who both later went on to serve as U.S. attorneys general.

That confirmation hearing was not as contentious as his confirmation in the Illinois General Assembly last week. The Illinois Senate voted along party lines, 37-18 but McCuskey managed to gather some support among House Republicans with a 77-16 margin of approval with 19 “present” votes.

McCuskey doesn’t hold a grudge against the naysayers. It’s politics, he said.

If his contract for Legislative Inspector General is comparable to his predecessor, McCuskey will earn $275 for every hour he bills with a cap of $200,000 a year.

* * *

GAS TAX FREEZE: Gov. JB Pritzker’s plan for pausing a scheduled automatic increase in the state’s motor fuel tax is facing opposition from several quarters, including engineering companies that design road and bridge projects.

On Thursday, officials from the American Council of Engineering Companies of Illinois said pausing the scheduled increase could have long-term consequences that could endanger funding for future transportation projects.

“We're open to working with all parties to find options for relief,” ACEC Illinois president Kevin Artl said during a news conference. “But I think the history here in Illinois is that when you skip payments, it only makes things worse. And in this instance, skipping this adjustment will lead to a half a billion dollars in lost funds for infrastructure projects over five years.”

The automatic, inflation-adjusted increase in the tax was part of the funding package for the $45 billion “Rebuild Illinois” capital improvements plan that lawmakers approved in 2019. Proceeds of the tax are used for transportation projects such as road and bridge repairs.

Administration officials have estimated this year’s increase would be a little more than 2 cents per gallon. But in his budget proposal for the upcoming fiscal year, Pritzker called for a one-year pause in that increase, which would save consumers about $135 million over the year.

That was part of a nearly $1 billion package of tax relief measures that Pritzker offered to help soften some of the impact of inflation on Illinois consumers. Administration officials have said the one-year pause in the tax increase would not affect funding of any future projects or the state’s ability to repay bonds that are backed by motor fuel tax revenues.

Other groups that benefit from state transportation funding have come out against the proposed tax freeze as well, including road construction companies and the International Union of Operating Engineers Local 150, which represents road construction workers.

State lawmakers are still working on a budget package for the upcoming fiscal year, and they have not yet acted on Pritzker’s proposed one-year pause on the gas tax hike.

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HOUSE CIVILITY CALLS: In the first half-hour of House session Tuesday at the Capitol, the leaders of each party made calls for civility, two lawmakers recounted their recollections of a House floor altercation, and three Republicans were removed from the floor for not wearing masks.  

Both House Speaker Emanuel “Chris” Welch, D-Hillside, and Minority Leader Jim Durkin, R-Western Springs, had a message for the members of the chamber: The public is watching and it’s time to get to work.

Tensions have been high on the House floor in recent days as Democrats have repeatedly called for the removal of GOP members who refuse to wear face coverings.

The chamber approved masking and temperature requirements when they first returned to session amid the COVID-19 pandemic. They say a member should be masked unless eating or drinking.

On Thursday, Rep. Lakesia Collins, D-Chicago, motioned to remove nine Republicans from the floor for failing to comply with House rules. Her inclusion of state Rep. Steve Reick, R-Woodstock, in her initial motion to remove maskless members led to the altercation.

Reick, who was not disobeying the floor mask mandate, confronted Collins on the floor shortly after the motion. The Democrat reported that she felt threatened when Reick pointed a finger in her face and allegedly told Collins to keep his name out of her mouth.

Other lawmakers came between the pair, and about 10 minutes later, Reick said he attempted to apologize, but was told by Welch and others that the time was not right.

Collins, in a floor speech, noted her mother died when she was five, and she experienced “trauma after trauma,” including verbal, physical and sexual abuse.

“So in that moment when I was confronted by my colleague, and what my colleague said to me in that moment, I was triggered. I was scared. I felt unprotected,” she said. “And I was shocked that this even transpired.”

While Collins said Reick did try to apologize shortly afterward, it wasn’t the right time in her mind because she felt unsafe.

Reick said his actions Thursday could “to some extent” be attributed to his upbringing as well.

“I was taught that you don’t take an insult, you don’t take something that is wrong lightly,” he said. “And when I heard my name being mentioned as one who was violating the mask mandate, I took umbrage at that because I'm also a rules guy.”

Reick said he follows the rules, even if he disagrees completely.

He said he regretted the words and actions he used Thursday when confronting Collins, and he added there was no intent to cause harm.

MASKLESS REMOVAL: Three Republican members removed Tuesday for disobeying mask mandates included Reps. Dan Caulkins, R-Decatur, Blaine Wilhour, R-Beecher City, and Adam Niemerg, R- Dieterich. They were all allowed to participate remotely.

Wilhour, who was also one of the nine removed last week, is suing Welch for the mask mandates, asking a judge to prevent the speaker from removing him from the House floor. He is represented by Thomas DeVore, a frequent litigant against Gov. JB Pritzker’s mandate authority, who announced this week he is running for attorney general.

After Durkin and Welch were done speaking about civility, Rep. Andrew Chesney, a Freeport Republican who was one of the nine removed from the floor last week, said the floor mask mandate should be enforced consistently.

“If we're going to follow the rules, we follow all the rules, just not the ones you guys pick and choose to follow,” he said, through a mask. “So we need to wear our face masks when we debate. If we're going to look like idiots, we got to debate like idiots and we got to do it with our masks on.”

Welch pointed out the House rules were adopted by majority vote, and they’re in place to prevent COVID-19 outbreaks among members and staff.

“More importantly, we have colleagues in this body who have children or family members who are immunocompromised or ill. Let's do our part,” he said.

*  *  *

CULLERTON RESIGNS: State Sen. Tom Cullerton, D-Villa Park, resigned his seat Wednesday, Feb. 23, and will reportedly plead guilty next month to federal corruption charges.

Cullerton, 52, a former chairman of the Senate Labor Committee, was first elected to the Senate in 2012 and was seated in 2013. In August 2019, he was indicted on multiple charges of embezzlement for allegedly receiving pay and benefits from Teamsters Joint Council 25 while doing little or no work for the union.

Cullerton had denied any wrongdoing and was originally scheduled to go on trial in 2020, but that was postponed due to the COVID-19 pandemic. His most recent trial date was scheduled for April 18.

On Wednesday, though, the Chicago Sun-Times reported that Cullerton’s attorney, Daniel Collins, had requested a change of plea hearing and Cullerton submitted his resignation to the Senate.

U.S. District Judge Robert Gettleman scheduled that plea hearing for March 8.

Cullerton’s indictment in 2019 grew out of a sprawling investigation by U.S. Attorney John Lausch’s office into public corruption in Illinois politics. That investigation also led to indictments of former Sen. Martin Sandoval, now deceased, former Sen. Terry Link and former Rep. Luis Arroyo, all Democrats.

It also led to indictments of several officials at utility giant Commonwealth Edison for allegedly trying to bribe former longtime House Speaker Michael Madigan, D-Chicago, in exchange for passing favorable legislation for the company. Madigan, who has since resigned, was not charged and denied any wrongdoing.

In October 2021, Cullerton’s attorney filed a motion to dismiss most of the charges. In that motion, he explained that Cullerton had been a member of the International Brotherhood of Teamsters and worked as a truck driver for Hostess Brands until that company filed for bankruptcy in 2012, the same year he was elected to the Senate.

Cullerton was charged with 39 counts of embezzlement – one for each paycheck he received – as well as illegally obtaining health care through the union’s health insurance plan.

Cullerton’s seat will be filled by appointment from the Democratic party organization in the 23rd Senate district.

* * *

INTEREST PENALTIES: Illinois Comptroller Susana Mendoza is calling for repealing a law that imposes a 12 percent interest whenever the state is late paying its bills, along with a program that allows private investors to purchase the debt owed to vendors and collect that interest penalty.

Speaking to a Senate budget committee Tuesday, Mendoza said the state is nearly caught up on its bill backlog and that those two programs are no longer needed.

“This program has allowed private lenders to loan money to state vendors, then rake in the 12 percent interest that state taxpayers were on the hook for with these late bills,” Mendoza said. “Now happily the days of connected private lenders profiting off the state's financial problems can and should be over.”

Mendoza was referring to a 1993 law known as the Prompt Payment Act, which says that whenever the state fails to pay a bill within 60 days, the state must pay an interest penalty of 1 percent per month, or 12 percent per year.

During the height of the two-year budget impasse that stretched from 2015 to 2017, the backlog of past due bills climbed to as high as $16.7 billion, with interest penalties accruing on those bills. So in 2016, lawmakers authorized the Vendor Payment Program, which authorized “qualified purchasers” – typically, wealthy investors – to purchase the bills by paying off the principal owed to those vendors, then collecting that money back from the state with 12 percent interest.

Mendoza’s spokesperson, Abdon Pallasch, said Tuesday that more than $665 million in interest penalties have now been paid to those investors and that about only $41 million is still owed to them.

With the state’s cash flow problems now largely ironed out, Mendoza said, she believes it is time to phase out the Vendor Payment Program, and she said she believes the Prompt Payment Act has failed to achieve its purpose.

She said that during the budget impasse, the state paid out more than $1 billion in interest penalties, something she said was proof that the penalties did not force lawmakers or other state officials to be more disciplined with their budgets.

* * *

REMOTE ORDERS OF PROTECTION: In a unanimous vote Wednesday, Feb. 24, the Illinois Senate voted to pass a measure that provides domestic violence and sexual assault survivors online access for order of protection court hearings in the state’s nine largest counties.  

Sponsored by Sen. Steve Stadelman, D-Rockford, Senate Bill 3667 provides survivors of domestic violence and sexual assault the option to file an order of protection online or in-person and requires counties with a population of 250,000 or more to offer a remote hearing to the petitioner for a protective order.

Counties above that threshold include Cook, DuPage, Lake, Will, Kane, McHenry, Winnebago, Madison and St. Clair.

An order of protection orders an individual who is causing harm to stay away from someone and provides an extra measure of safety to survivors. 

Carrie Ward, executive director of the Illinois Coalition Against Sexual Assault, said providing remote options eliminates the barriers of travel limitations, child care issues and victims having to face their attackers.

According to the bill, courts will need to issue and publish a court order, standing order or local rule that details information about the process for requesting and participating in remote court appearances. The order would need to be published on the court’s website, posted on signs throughout the courthouse and in the clerk's office.

The bill also allows the petitioner and the respondent to appear for related hearings remotely or in person. Courts could approve or deny the request for a remote hearing.

* * *

DCFS CONTEMPT: For the fourth time in six weeks, a Cook County juvenile court judge has held Illinois Department of Children and Family Services Director Marc Smith in contempt for failing to move a minor into an appropriate placement.

“This really underscores the level of crisis here,” said Cook County Public Guardian Charles Golbert. “They knew about this hearing and even with the hammer of a contempt of court citation over their heads, they were unable to find an appropriate placement for this child.”

Golbert’s office provides legal representation to thousands of abused and neglected children in Cook County who are wards of the court.

There are currently 43 children in the custody of DCFS who are in placements beyond medical necessity, according to DCFS.

“The Department of Children and Family Services is dedicated to keeping children safe and strengthening families,” DCFS spokesman William McCaffrey said in an email. “We are working aggressively addressing the decades-long challenge of a lack of community resources and facilities for children with complex behavioral health needs, which has been exacerbated by an increased demand in social services in recent years.”

The latest case involves a 16-year-old girl who came into the state’s care on Sept. 28. The girl was medically approved for discharge from a locked psychiatric hospital but remained in the hospital for two more months while DCFS tried to find a placement for her, Golbert said.

The girl was discharged from the psychiatric hospital on Nov. 18, but has changed placements 24 times since then, Golbert said. A chart with her placements that was used as an exhibit in court showed the teen was moved up to six times in a week.

Her placements included hospitals, temporary foster homes and emergency temporary shelters, including a shelter in Indiana, Golbert said.

DCFS first recommended a specialized foster home for the girl based on an October evaluation, Golbert said, but then reevaluated her in December and then recommended residential care.

On Jan. 6, a Cook County juvenile court judge ordered DCFS to place the girl in residential care in compliance with their own recommendation. Six weeks later, the girl was still waiting for that placement.

On Thursday afternoon, a judge once again signed a contempt citation against Smith. The girl is currently in a psychiatric hospital.

 

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