{ "id": 1260423, "name": "THE PEOPLE ex rel. ROBERT SKLODOWSKI et al., Plaintiffs-Appellants, v. THE STATE OF ILLINOIS et al., Defendants and Counterdefendants-Appellees (Judges' Retirement System of Illinois et al., Nominal Defendants and Counter plaintiffs-Appellants); ILLINOIS RETIRED TEACHERS ASSOCIATION, Intervenor-Appellant, v. THE STATE OF ILLINOIS et al., Defendants-Appellees", "name_abbreviation": "People Ex rel. Sklodowski v. State", "decision_date": "1996-08-13", "docket_number": "Nos. 1-93-2951, 1-93-3171, 1-93-3172, 1-93-3173 cons.", "first_page": "809", "last_page": "823", "citations": [ { "type": "official", "cite": "284 Ill. App. 3d 809" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "495 P.2d 639", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "pin_cites": [ { "page": "649", "parenthetical": "holding that the legislature's adoption of a systematic method of funding \"becomes one of the vested contractual pension rights flowing to members of the system\"" } ], "opinion_index": 0 }, { "cite": "80 Wash. 461", "category": "reporters:state", "reporter": "Wash.", "year": 1983, "pin_cites": [ { "page": "478", "parenthetical": "holding that the legislature's adoption of a systematic method of funding \"becomes one of the vested contractual pension rights flowing to members of the system\"" } ], "opinion_index": 0 }, { "cite": "181 W. Va. 779", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8578921 ], "weight": 2, "year": 1988, "pin_cites": [ { "parenthetical": "holding that the Governor has a ministerial duty to prepare a budget consistent with the West Virginia Constitution and statutes" }, { "parenthetical": "holding that the Governor has a ministerial duty to prepare a budget consistent with the West Virginia Constitution and statutes" } ], "opinion_index": 0, "case_paths": [ "/w-va/181/0779-01" ] }, { "cite": "173 Ill. 2d 433", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147635 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "436" }, { "page": "439" }, { "page": "446" }, { "page": "446-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0433-01" ] }, { "cite": "326 N.E.2d 749", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "60 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415909 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "275" }, { "page": "275" }, { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0266-01" ] }, { "cite": "447 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "95 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111336 ], "year": 1983, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0211-01" ] }, { "cite": "487 N.E.2d 937", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "109 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126692 ], "year": 1985, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0357-01" ] }, { "cite": "382 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "72 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5442891 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "514" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0507-01" ] }, { "cite": "514 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "118 Ill. 2d 99", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188334 ], "year": 1987, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0099-01" ] }, { "cite": "111 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "414 Ill. 571", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313979 ], "year": 1953, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0571-01" ] }, { "cite": "321 Ill. 510", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5167509 ], "year": 1926, "pin_cites": [ { "page": "517-18", "parenthetical": "finding that where an officer \"may be compelled by mandamus to act, the court in such case is simply compelling action and not the manner of action\"" } ], "opinion_index": 0, "case_paths": [ "/ill/321/0510-01" ] }, { "cite": "426 N.E.2d 891", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "opinion of Goldenhersh, C.J., joined by Ward and Clark, JJ." } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469234 ], "year": 1981, "pin_cites": [ { "page": "416", "parenthetical": "opinion of Goldenhersh, C.J., joined by Ward and Clark, JJ." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0410-01" ] }, { "cite": "127 Ill. 2d 453", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5563972 ], "year": 1989, "pin_cites": [ { "page": "467-68" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0453-01" ] }, { "cite": "440 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "91 Ill. 2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091586 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0518-01" ] }, { "cite": "584 N.E.2d 257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 559", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261578 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0559-01" ] }, { "cite": "515 N.E.2d 1244", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "118 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188110 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "472" }, { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0465-01" ] }, { "cite": "545 N.E.2d 133", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "127 Ill. 2d 643", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "537 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621284 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0448-01" ] }, { "cite": "618 N.E.2d 1049", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "250 Ill. App. 3d 300", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2920500 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0300-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1988, "opinion_index": 0 } ], "analysis": { "cardinality": 1178, "char_count": 35187, "ocr_confidence": 0.751, "pagerank": { "raw": 7.874628130246626e-08, "percentile": 0.4599474718410224 }, "sha256": "8e504be8b1031cf002760594a56e810719af5d3d56f16a58abbaa390c37d8253", "simhash": "1:f332fea8616bd506", "word_count": 5479 }, "last_updated": "2023-07-14T14:51:55.867701+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE ex rel. ROBERT SKLODOWSKI et al., Plaintiffs-Appellants, v. THE STATE OF ILLINOIS et al., Defendants and Counterdefendants-Appellees (Judges\u2019 Retirement System of Illinois et al., Nominal Defendants and Counter plaintiffs-Appellants).\u2014ILLINOIS RETIRED TEACHERS ASSOCIATION, Intervenor-Appellant, v. THE STATE OF ILLINOIS et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the modified opinion of the court upon denial of partial rehearing:\nThis case involves an action based on an alleged failure to contribute to, and on the alleged impairment of, retirement pension benefits and contractual rights by the State of Illinois and certain state officials.\nPlaintiffs Robert Sklodowski, Thomas Hanahan, Sandee Hanahan, Susan Lillis, Robert Negronida and Mark D. Warden, counter-plaintiffs, the State Employees\u2019 Retirement System (SERS), the State Universities\u2019 Retirement System (SURS), the Teachers\u2019 Retirement System of the State of Illinois (TRS) (retirement systems), and intervenor, the Illinois Retired Teachers Association (intervenor), appeal from an order of the circuit court dismissing plaintiffs\u2019 second amended complaint, counterplaintiffs SURS\u2019 and TRS\u2019 amended counterclaim, counterplaintiff SERS\u2019 counterclaim and intervenor\u2019s complaint for a writ of mandamus against defendants, the State of Illinois and its officials, Jim Edgar (Governor), Philip Rock (President of the Senate), Michael Madigan (Speaker of the House of Representatives), Dawn Clark Netsch (Comptroller) and Patrick Quinn (Treasurer), based on the separation of powers doctrine.\nOn appeal, plaintiffs, counterplaintiffs and intervenor argue that (1) the constitutional separation of powers doctrine does not prevent the judiciary from ordering state officials to perform nondiscretionary duties; (2) they have a contractual interest under the state constitution in the financial integrity of the state retirement systems; and (3) the federal and state contracts clauses prohibit impairment of pension contract rights. Counterplaintiffs SEES, SUES and TES also contend that the constitutional legislative supremacy clause does not prohibit their claims. Plaintiffs also contend that their second amended complaint stated (1) a valid claim against defendants for breach of fiduciary duty and (2) a viable claim for a civil rights violation. For the reasons set forth below, we affirm in part and reverse in part.\nIn 1963, the State of Illinois created five retirement systems: SEES, SUES, TES, the General Assembly Eetirement System, and the Judges Eetirement System of Illinois. Each retirement system is governed by a separate section of the Illinois Pension Code (Pension Code) (40 ILCS 5/1 \u2014 101 et seq. (West 1992)). In 1989, Illinois Public Act 86 \u2014 273, effective August 23, 1989, added the following language to sections 2 \u2014 124, 14 \u2014 131(f), 15 \u2014 155(a), 16 \u2014 158(b) and 18 \u2014 131(2) of the Pension Code (Ill. Rev. Stat. 1991, ch. IO8V2, par. 1 \u2014 101 et seq. (now 40 ILCS 5/1 \u2014 101 et seq. (West 1992))), which pertain to the five retirement systems:\n\"Starting with the fiscal year which ends in 1990, the State\u2019s contribution [to the retirement systems] shall be increased incrementally over a 7 year period so that by the fiscal year which ends in 1996, the minimum contribution to be made by the State shall be an amount that, when added to other sources of employer contribution, is sufficient to meet the normal cost and amortize the unfunded liability over 40 years as a level percentage of payroll, determined under the projected unit credit actuarial cost method. The State contribution, as a percentage of the applicable employee payroll, shall be increased in equal increments over the 7 year period until the funding requirement specified above is met.\u201d Pub. Act 86 \u2014 273, eff. August 23, 1989.\nPlaintiffs subsequently filed a class action in behalf of the participants of the retirement systems against defendants and naming as nominal defendants the board of trustees of the retirement systems, seeking a writ of mandamus, declaratory judgment and an enforcement order based on defendants\u2019 alleged failure to comply with Public Act 86 \u2014 273. Plaintiffs alleged in their second amended complaint that defendants\u2019 \"actions (specifically the State\u2019s failure to contribute as required under P.A. 86 \u2014 273) and the individual Defendants\u2019 past and continuing improper budgeting (Governor) and appropriation (President of Senate and Speaker of the House), contrary to that required by P.A. 86 \u2014 273, constitute unlawful impairment of the participants\u2019 contractual rights under Article 13, \u00a7 5 of the 1970 Illinois Constitution [pension protection clause].\u201d 111. Const. 1970, art. XIII, \u00a7 5. Plaintiffs further alleged that the State, in failing \"to act in accordance with P.A. 86 \u2014 273,\u201d breached its fiduciary duties under the Illinois Pension Code (40 ILCS 5/1 \u2014 109(d) (West 1992)) and that defendants\u2019 \"actions in budgeting, appropriating and contributing different lesser amounts than those required by P.A. 86 \u2014 273 constitute the passage of law impairing obligations of contract, in violation with the Contract Clause of the United States Constitution\u201d (U.S. Const., art. I, \u00a7 10) \"and/or an invalid attempt to grant the State freedom from making its contribution required by P.A. 86 \u2014 273,\u201d thereby violating article I, section 16, of the Illinois Constitution (111. Const. 1970, art. I, \u00a7 16). Plaintiffs\u2019 second amended complaint also included a count against the individual defendants alleging that they deprived plaintiffs of property under color of state law in violation of 42 U.S.C. \u00a7 1983 (1988).\nIntervenor\u2019s motion to intervene was granted on October 2, 1992. On December 21, 1992, counterplaintiffs SUES and TES answered plaintiffs\u2019 second amended complaint and filed an amended counterclaim against the Governor, Comptroller and Treasurer alleging impairment of pension benefits and impairment of contractual rights in violation of article I, section 10, of the United States Constitution (U.S. Const., art. I, \u00a7 10) and article I, section 16, of the Illinois Constitution (111. Const. 1970, art. I, \u00a7 16). On the same day, intervenor filed a three-count complaint against the State, Governor, Comptroller and Treasurer alleging that they impaired the pension benefits and contractual rights to benefits of participants in SUES and TES in violation of the federal and state constitutions.\nOn February 19, 1993, the State, Governor, Senate President and House Speaker moved to dismiss plaintiffs\u2019 second amended complaint, arguing that the trial court lacked jurisdiction over the State pursuant to the doctrine of sovereign immunity, the doctrine of separation of powers prevented the court from compelling the General Assembly to appropriate public funds; the doctrine of separation of powers prevented the trial court from compelling the Governor to budget a certain amount of money because budgeting is an executive function; and a writ of mandamus was not available because \"plaintiffs do not seek to compel State officials to perform ministerial duties.\u201d On the same day, the Governor moved to dismiss the amended counterclaim filed by counterplaintiffs SUES and TRS, and the Governor and the State moved to dismiss intervenor\u2019s complaint. Both motions were substantially similar in content to the Governor\u2019s and State\u2019s motions to dismiss plaintiffs\u2019 second amended complaint.\nOn August 6, 1993, the trial court granted the motions to dismiss plaintiffs\u2019 second amended complaint, SUES\u2019 and TRS\u2019 amended counterclaim and intervenor\u2019s complaint, finding that the separation of powers doctrine prevented the trial court from \"directing the Legislature to take any specific conduct.\u201d\nOn August 23, 1993, counterplaintiff SEES filed a motion for leave to answer plaintiffs' second amended complaint and to file a counterclaim and motion to substitute counsel. On August 31, the trial court granted SEES\u2019 motion, but dismissed its answer and counterclaim based on the separation of powers doctrine.\nOn September 2, 1993,, SEES, SUES and TRS moved for reconsideration of the August 6 and August 31 orders dismissing SUES\u2019 and TRS\u2019 amended counterclaim and SEES\u2019 counterclaim, respectively. On September 3, intervenor moved for reconsideration of the trial court\u2019s August 6 order dismissing its complaint. On the same day, the trial court denied all of the motions for reconsideration. This appeal followed.\nOn April 16,1996, defendants filed a \"Renewed Motion to Dismiss Appeals as Moot\u201d with this court, arguing that Public Act 86 \u2014 273, upon which complainants rely, was repealed by Public Act 88 \u2014 593. Public Act 88 \u2014 593 provides for continuing automatic appropriations of required State contributions to the retirement systems to bring the pension systems to a 90% funding ratio by the end of fiscal year 2045. In response, plaintiffs, counterplaintiffs and intervenor argued that all beneficiaries who entered their respective retirement systems between August 23, 1989, the date Public Act 86 \u2014 273 became effective, and August 22, 1994, the date it was repealed, have a vested contractual right to enforce the terms of Public Act 86 \u2014 273 pursuant to article XIII, section 5, of the Illinois Constitution. Plaintiffs, counterplaintiffs and intervenor further argue that the public interest exception to the mootness doctrine permits this court to review the dismissal of their complaints and counterclaims despite the fact that Public Act 86 \u2014 273 has been repealed.\nIn addition, plaintiffs and counterplaintiff TRS argue that Public Act 88 \u2014 593 became effective on August 22, 1994, and was therefore in effect when this court first denied defendants\u2019 original motion to dismiss as moot and, therefore, this court should again deny the motion because the circumstances have not changed. We have taken defendants\u2019 renewed motion to dismiss with this case.\nThe standard of review of a trial court\u2019s order dismissing a complaint is de novo. Anastos v. Chicago Regional Trucking Ass\u2019n, 250 Ill. App. 3d 300, 618 N.E.2d 1049 (1993). In considering the dismissal of an action, a reviewing court must interpret the allegations of the complaint in a light most favorable to the plaintiff and, if it appears that no set of facts from the pleadings could be proved that would entitle the plaintiff to relief, the dismissal must be affirmed. Turner v. Rush Medical College, 182 Ill. App. 3d 448, 537 N.E.2d 890 (1989), appeal denied, 127 Ill. 2d 643, 545 N.E.2d 133 (1989).\nI\nBefore reaching plaintiffs\u2019, counterplaintiffs\u2019 and intervenor\u2019s arguments, we first address the State\u2019s contention that the trial court lacks subject matter jurisdiction over it pursuant to the State Lawsuit Immunity Act (745 ILCS 5/1 (West 1992)) and that \"[t]o the extent *** that the pleadings attempt to assert a cause of action against the State of Illinois, they had to be dismissed.\u201d Plaintiffs counter that they sought \"by mandamus to compel public officials to perform clear and mandatory duties and that is not an action against the State.\u201d Plaintiffs further maintain that since \"the Court of Claims has no equity jurisdiction and cannot award the mandamus and declaratory relief Plaintiffs seek,\u201d the trial court is the proper forum to grant this relief. Counterplaintiffs SEES and SUES argue that questions involving constitutionality of the State defendants\u2019 actions are not barred by the doctrine of sovereign immunity.\nPursuant to the State Lawsuit Immunity Act (745 ILCS 5/1 (West 1992)), \"[e]xcept as provided in the 'Illinois Public Labor Eelations Act\u2019 *** or '[An Act] to create the Court of Claims ***,\u2019 the State of Illinois shall not be made a defendant or party in any court.\u201d The Illinois Court of Claims Act (705 ILCS 505/8(a) (West 1992)) provides that the Court of Claims shall have exclusive jurisdiction to hear \"[a]ll claims against the state founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency.\u201d\nIn Board of Trustees of Community College District No. 508 v. Burris, 118 Ill. 2d 465, 472, 515 N.E.2d 1244 (1987), a community college district\u2019s board of trustees brought an action against the State Comptroller and the Director of the Department of Commerce and Community Affairs seeking reimbursement from the Comptroller for the cost of providing veterans\u2019 scholarships or declaratory judgment requiring the Director to notify the General Assembly of the.State\u2019s failure to fully fund the veterans\u2019 scholarship program. Plaintiff there argued that it was entitled to reimbursement under the State Mandates Act for funds expended on veterans\u2019 scholarships. The District 508 court found that because plaintiff\u2019s action \"challenges the defendants\u2019 interpretation of their obligations under the Mandates Act,\u201d plaintiff\u2019s \"suit is not one against the State, but is one that contests the conduct of State officials in allegedly proceeding in violation of [the] law.\u201d District 508, 118 Ill. 2d at 473.\nHere, as in District No. 508, plaintiffs\u2019 cause of action, by their own admission, is not against the State but is one against the other named defendant officials regarding their interpretation and performance of statutory obligations. Accordingly, the claims against the State itself are barred. We find, however, that the proper basis for dismissal of the State as a party is the doctrine of sovereign immunity and not, as the trial court found, separation of powers. Williams v. Board of Education, 222 Ill. App. 3d 559, 584 N.E.2d 257 (1991).\nII\nPlaintiffs, counterplaintiffs and intervenor first contend that the trial court erred in dismissing their complaints and counterclaims based on the separation of powers doctrine because defendant officials\u2019 obligations under Public Act 86 \u2014 273 to fund the retirement systems are mandatory and it is the judiciary\u2019s responsibility to ensure compliance with the law by the executive and legislative branches. Counterplaintiffs SEES and SUES assert further that, without judicial oversight, Public Act 86 \u2014 273 is meaningless and unenforceable.\nDefendants argue that the relief plaintiffs, counterplaintiffs and intervenor seek can be accomplished only through enacting appropriations, which is a legislative prerogative, and the preparation of a budget, which is an executive prerogative; therefore, the judiciary cannot compel the exercise of these functions in a particular manner because of the separation of powers doctrine.\n\"The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.\u201d Ill. Const. 1970, art. II, \u00a7 1. Once rights are created by the constitution or statute, \"[i]t is within the realm of judicial authority to assure that the action of the members of the executive branch does not deprive [individuals] of an institution of rights conferred by statute or by the Constitution.\u201d Dixon Ass\u2019n for Retarded Citizens v. Thompson, 91 Ill. 2d 518, 533, 440 N.E.2d 117 (1982). A writ of \"mandamus is discretionary and is appropriate only where there is a clear right to the requested relief, a clear duty of the [defendant] to act, and clear authority in the [defendant] to comply with the writ.\u201d Orenic v. Illinois State Labor Relations Board, 127 Ill. 2d 453, 467-68 (1989). \"[W]hile mandamus will not lie to direct the manner in which the discretion is to be exercised, it is available to compel the performance of an action which requires the exercise of discretion or even compel the exercise of discretion itself.\u201d Rock v. Thompson, 85 Ill. 2d 410, 416, 426 N.E.2d 891 (1981) (opinion of Goldenhersh, C.J., joined by Ward and Clark, JJ.); see also Fergus v. Marks, 321 Ill. 510, 517-18 (1926) (finding that where an officer \"may be compelled by mandamus to act, the court in such case is simply compelling action and not the manner of action\u201d).\nHere, plaintiffs, counterplaintiffs and intervenor sought to have the judiciary order defendant officials by mandamus to comply with Public Act 86 \u2014 273, which already provides, as enacted by the legislature, a level of funding of the retirement systems over a seven-year period. Plaintiffs do not seek to have the judiciary compel the manner or means in which defendants perform their duties to achieve compliance. In fact, \"[w]here a statute categorically commands the performance of an act, so much money as is necessary to pay the command may be disbursed without any explicit appropriation.\u201d Antle v. Tuchbreiter, 414 Ill. 571, 581, 111 N.E.2d 836 (1953). Additionally, as more fully discussed below, plaintiffs, counterplaintiffs and intervenor have a clear contractual right to the State contributions provided by Public Act 86 \u2014 273, which is thus a mandatory rather than a discretionary duty upon the State, and defendant officials thus have a duty and authority to act to comply with that Act; as plaintiffs point out, section 2(a) of article VIII of the Illinois Constitution (Ill. Const. 1970, art. VIII, \u00a7 2(a)) requires the Governor to submit a budget in accordance with state law and section 8 of article IV (Ill. Const. 1970, art. IV, \u00a7 8) requires defendants \"Speaker of the House of Representatives and the President of the Senate *** to certify that the procedural requirements for passage have been met\u201d for each bill that passes both houses. Because it is the responsibility of the judiciary to assure that the actions of the executive and legislative branches do not deprive individuals of rights conferred by statute or the constitution (Dixon Ass\u2019n, 91 Ill. 2d 518, 440 N.E.2d 117), the trial court therefore was not barred by the separation of powers doctrine from considering, based on the merits of plaintiffs\u2019, counterplaintiffs\u2019 and intervenor\u2019s claims, whether to issue a writ of mandamus to compel defendant officials to comply with Public Act 86 \u2014 273. Accordingly, we find that the trial court erred in dismissing plaintiffs\u2019 second amended complaint, counterplaintiffs SURS\u2019 and TRS\u2019 amended counterclaim, counterplaintiff SERS\u2019 counterclaim and intervenor\u2019s complaint.\nIll\nPlaintiffs, counterplaintiffs and intervenor next maintain that defendants\u2019 failure to adequately fund the state retirement systems violates the pension protection clause of the Illinois Constitution. Ill. Const. 1970, art. XIII, \u00a7 5. They further argue that Public Act 86\u2014 273 became part of the State\u2019s contract with the retirement system participants when the legislature amended the Pension Code. Defendants counter that the pension protection clause does not \"endow\u201d beneficiaries \"with a contractual right to enforce the funding mechanism\u201d of Public Act 86 \u2014 273, which they assert does not provide continuing appropriations, but protects them only from the State\u2019s failure to pay benefits to beneficiaries \"when they are due.\u201d\nSection 5 of article XIII of the Illinois Constitution of 1970 (Ill. Const. 1970, art. XIII, \u00a7 5) provides that \"[mjembership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired [pension protection clause].\u201d This clause has been interpreted as creating \"contractual protection for all pension plans.\u201d (Emphasis added.) Buddell v. Board of Trustees, State Universities Retirement System, 118 Ill. 2d 99, 102, 514 N.E.2d 184 (1987). The provisions of the Pension Code are \"actual terms\u201d of the contractual relationship established in section 5. Kerner v. State Employees\u2019 Retirement System, 72 Ill. 2d 507, 514, 382 N.E.2d 243 (1978). In construing a statute, a court\u2019s \"objective is to ascertain and give effect to the legislative intent as determined from the necessity or reason for the enactment and the meaning of the words employed.\u201d Kerner, 72 Ill. 2d at 512. It is well settled that the legislature in passing a law is presumed not to have \"intended a meaningless act.\u201d Niven v. Siqueira, 109 Ill. 2d 357, 367, 487 N.E.2d 937 (1985). The law assumes that the legislature in enacting new law is \"aware of judicial decisions concerning prior and existing law and legislation.\u201d Kozak v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund, 95 Ill. 2d 211, 218, 447 N.E.2d 394 (1983).\nHere, in 1989 the legislature was aware of the magnitude of the retirement systems\u2019 underfunding and, as a result, enacted Public Act 86 \u2014 273. It is clear that the legislature, by enacting Public Act 86 \u2014 273, intended to bind itself to the obligation of paying these funds to the retirement systems. Moreover, when the legislature amended the Pension Code to add the requirement of an increase in State contributions over a seven-year period to each of the five retirement systems pursuant to Public Act 86 \u2014 273 in order to attain full funding, those requirements became part of the State\u2019s contract with the pension beneficiaries. Beneficiaries in each system provided consideration for this added term of the contract by continuing to render their services to the State and to pay their own contributions.\nThis is not a situation like that in People ex rel. Illinois Federation of Teachers v. Lindberg, 60 Ill. 2d 266, 326 N.E.2d 749 (1975), upon which defendants rely, where participants in several teachers\u2019 pension funds challenged the governor\u2019s item reduction of fiscal appropriations to the funds, arguing that the Pension Code establishing a contractual relationship between themselves and the State obligated the State to fulfill its funding commitments. The Lindberg court found that the statutory language relied upon by the plaintiffs was made a part of the Pension Code before the adoption of the 1970 Constitution, at a time when such pensions were uniformly not considered as creating any contractual right, and which, the Lind-berg court determined, did not evidence the legislature\u2019s intent to establish a vested contractual right. Lindberg, 60 Ill. 2d at 275. In so finding, the Lindberg court concluded that \"had the legislature intended to establish a present contractual relationship ***, it would have been a simple matter to so state.\u201d Lindberg, 60 Ill. 2d at 275. The court lastly stated: \"Plaintiffs have asserted that the respective pension systems are inadequately funded. The question of the specific fiscal appropriations necessary to meet these deficiencies is one which *** should be directed to the legislature.\u201d Lindberg, 60 Ill. 2d at 277.\nIn the present case, the legislature, pursuant to section 5 of article XIII, which established an enforceable contractual relationship between pension beneficiaries and the State, did in fact do just as the Lindberg court indicated it had the power to do by specifically enacting Public Act 86 \u2014 273, which promised pension beneficiaries an increase in State contributions over a seven-year period for the specific purpose of fully funding the admittedly underfunded retirement systems. In other words, the legislature provided for the \"how much\u201d and \"when\u201d as to funding the retirement systems. Plaintiffs here did not claim that the legislature must make specific appropriations but, rather, that, by enacting Public Act 86 \u2014 273, the legislature failed to make contributions pursuant to the formula it established to require it to make contributions to the funds during a seven-year period in order to fully fund the pension systems. We further observe that Public Act 86 \u2014 273 does not contain any limiting language, as possibly Public Act 88 \u2014 -593 (40 ILCS 5/1 \u2014 103.3 (West 1994)) does, which defendants cite to in support of their motion to dismiss these appeals as moot, to indicate that the legislature\u2019s commitment expressed in Public Act 86 \u2014 273 is a \"goal.\u201d Like the situation in Lindberg, the legislature could have included some limiting language to indicate that its intent was not to obligate itself to a level of funding over the seven-year period, but it did not do so. To accept defendants\u2019 position would result in allowing the legislature to unilaterally change the terms of its contract once the time for compliance with the former terms is required. Such a practice could continue indefinitely, thus making each law (contract) meaningless.\nWe further note that our supreme court\u2019s recent decision in McNamee v. State of Illinois, 173 Ill. 2d 433 (1996), upon which defendants rely and which was filed subsequent to the issuance of the opinion in this case, is distinguishable from the case at bar. In Mc-Namee, the plaintiffs alleged that an amendment changing the method of computing the annual amount required to amortize the unfunded accrued liability of police pensions diminished and impaired their pension benefits because the new method would \"allow municipalities to contribute lower initial annual contributions to the police pension funds, thereby making the funds less secure\u201d (173 Ill. 2d at 436) and that they had a \"protected contractual right [pursuant to section 5, article XIII] to the 'benefit\u2019 of the more secure fund created by the prior funding method\u201d (173 Ill. 2d at 439). The McNamee court, in interpreting the intent of the framers of our constitution, found that section 5 of article XIII creates an enforceable contractual right to pension benefits, but does not \"control the manner in which state and local governments fund their pension obligations\u201d (173 Ill. 2d at 446). Because the plaintiffs did not allege that the amendment diminished their right to receive pension benefits, the McNamee court held that the amendment did not violate section 5, article XIII. The court also found that \"[t]the word 'impaired\u2019 is meant to imply and to intend that if a pension fund would be on the verge of default or imminent bankruptcy, a group action could be taken to show that these rights should be preserved\u201d (173 Ill. 2d at 446-47), and that the plaintiffs had not alleged that the new funding method would impair their benefits by placing the fund on the verge of default or imminent bankruptcy.\nIn the present case, however, the legislature, by enacting Public Act 86 \u2014 273, has imposed upon itself a greater obligation beyond its contractual obligation set forth in section 5, article XIII, by in fact requiring that it incrementally increase its contributions to the pension funds over a seven-year period to fully fund the pension funds \u2014 to pay its outstanding debt to the pension funds \u2014 rather than to be obligated only to pay benefits to participants as they become due, just as the Lindberg court indicated the legislature had the power to do. In other words, although the intent of the framers of the constitution was not to control the funding of the pension funds, the legislature, by enacting Public Act 86 \u2014 273, promised the pension funds a level of funding, notwithstanding that the Act itself does not set forth the means by which the legislature was to perform its promise. Thus, it is this obligation that the plaintiffs here seek to compel defendants to perform; plaintiffs do not seek to dictate the specific means by which defendants are to comply with the promised funding under Public Act 86 \u2014 273. See Dadisman v. Moore, 181 W. Va. 779, 384 S.E.2d 816 (1988) (holding that the Governor has a ministerial duty to prepare a budget consistent with the West Virginia Constitution and statutes); Weaver v. Evans, 80 Wash. 461, 478, 495 P.2d 639, 649 (1983) (holding that the legislature\u2019s adoption of a systematic method of funding \"becomes one of the vested contractual pension rights flowing to members of the system\u201d). We additionally note that, unlike the plaintiffs in McNamee, plaintiffs, counterplaintiffs and intervenor here have all in one form or another alleged that the financial status of their separate pension funds is in a precarious state and that there will be no funds from which to pay benefits by 2008 or 2009. Whether this status is the equivalent of \"on the verge of default or bankruptcy\u201d must be determined by the trial court, but as pleaded, plaintiffs, counterplaintiffs and intervenor have stated a recognized cause of action.\nHere, Public Act 86 \u2014 273 provided a formula for contributions to the pension funds. Plaintiffs, counterplaintiffs and intervenor had a vested contract right in the funding provisions under Public Act 86\u2014 273 from the date Public Act 86 \u2014 273 became effective until August 22, 1994, when it was repealed by Public Act 88 \u2014 593. It is clear, from McNamee, that beneficiaries need not wait until they have been denied benefits before they can make a claim that their benefits have been impaired. Plaintiffs, counterplaintiffs and intervenor adequately alleged in their respective complaints and counterclaims that, through defendants\u2019 underfunding of the retirement systems, their benefits have been impaired. Accordingly, the trial court erred in dismissing plaintiffs\u2019 second amended complaint, counterplaintiffs SUES\u2019 and TES\u2019 amended counterclaim, counterplaintiff SEES\u2019 counterclaim and intervenor\u2019s complaint.\nIV\nPlaintiffs, counterplaintiffs and intervenor also contend that defendants\u2019 failure to budget, contribute and appropriate the proper amounts to the systems, as required by Public Act 86 \u2014 273, impaired their contract rights and violated article I, section 10, of the federal constitution (U.S. Const., art. I, \u00a7 10) and article I, section 16, of the state constitution (impairment of contracts clauses) (Ill. Const. 1970, art. I, \u00a7 16).\nArticle I, section 10, of the United States Constitution provides that \"[n]o State shall *** pass any *** Law impairing the Obligation of Contracts.\u201d U.S. Const., art. I, \u00a7 10. Article I, section 16, of the Illinois Constitution provides that \"[n]o *** law impairing the obligation of contracts or making an irrevocable grant of special privileges or immunities, shall be passed.\u201d Ill. Const. 1970, art. I, \u00a7 16.\nWe first note that the trial court did not make any finding on this issue. However, based on our determination above, that plaintiffs, counterplaintiffs and intervenor have a contractual right in the funding provision of Public Act 86 \u2014 273, as well as their allegations in their respective complaints and counterclaims that through defendants\u2019 underfunding of the retirement systems, by failing to budget, appropriate and contribute funds, their benefits have been impaired, we find that they have stated a recognized cause of action. Accordingly, the trial court erred in dismissing plaintiffs\u2019 second amended complaint, counterplaintiffs SUES\u2019 and TES\u2019 amended counterclaim, counterplaintiff SEES\u2019 counterclaim and intervenor\u2019s complaint.\nLastly, the parties\u2019 following arguments need not be addressed by this court for the reasons stated: (1) plaintiffs argue that they have standing to bring this action even though all retirement system benefits are presently being paid by the State because \"system bankruptcy is not a predicate for standing.\u201d Defendants, however, do not challenge plaintiffs on this \"issue\u201d on appeal; (2) counterplaintiffs SEES, SUES and TES argue that they have a responsibility to act in behalf of their members and that they are entitled to bring claims in favor of their participants and beneficiaries. Defendants do not challenge counterplaintiffs on this \"issue\u201d on appeal and, moreover, the trial court did not address this issue; (3) plaintiffs contend that defendants breached their fiduciary duties under the Pension Code; and (4) that they also violated plaintiffs\u2019 property rights protected by 42 U.S.C. section 1983 when they budgeted, appropriated and contributed lesser amounts to the retirement systems than required by law. The trial court did not make any finding regarding these two claims and we therefore do not address them.\nFor the reasons stated, we affirm the circuit court\u2019s dismissal of plaintiffs\u2019, counterplaintiffs\u2019 and intervenor\u2019s claims against the State of Illinois based on sovereign immunity; we reverse the court\u2019s dismissal of plaintiffs\u2019, counterplaintiffs\u2019 and intervenor\u2019s claims against all other defendants; and we remand this cause for further proceedings consistent with the views expressed herein. We also deny defendants\u2019 renewed motion to dismiss this case as moot.\nAffirmed in part and reversed in part; cause remanded.\nHAETMAN, P.J., and SCAEIANO, J., concur.\nDefendants had previously filed a motion to dismiss plaintiffs\u2019 appeal as moot on September 12, 1994, which this court denied on October 27,1994.\nIn support of their public interest exception argument, plaintiffs refer this court to the 1995 Annual Report of the Supreme Court to the General Assembly, at 1, which comments on the State-funded retirement systems as follows:\n\"In 1994 the General Assembly approved legislation to begin to address the serious problem of the under funding of the five state-financed retirement systems. The legislature took the significant step of establishing a long term solution to achieve a 90% funding ratio by the end of State fiscal year 2045. This plan also commits the state to continuing appropriations of the required contributions to the General Assembly, Judges, State Employees, State Universities, and State Teachers retirement systems.\nThe General Assembly is to be commended for addressing this ongoing problem. However, the Auditor General recently reported that unfunded liabilities for the five state-financed retirement systems grew by $2.48 billion last year, to a record $19.5 billion. Because of other continuing difficulties related to these systems, the General Assembly is strongly urged to accelerate the schedule for reaching actuarial soundness.\u201d (Emphasis added.)\nPlaintiffs also argue that Public Act 88 \u2014 593 is itself unconstitutional because its reduced level of funding impairs the contract rights of the beneficiaries and violates article XIII, section 5, of the Illinois Constitution and article I, section 16, of the United States Constitution. We do not consider this argument because Public Act 88 \u2014 593 was enacted after plaintiffs\u2019, counterplaintiffs\u2019 and intervenor\u2019s appeal to this court and, therefore, review of that act is not before us.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Skadden, Arps, Slate, Meagher & Flom, of Chicago (Susan Getzendanner and Kimberley K. Baer, of counsel), for appellants State Employees\u2019 Retirement System of Illinois and State Universities Retirement System.", "Rudnick & Wolfe, of Chicago (William J. Campbell, Jr., Richard S. Huszagh, and Howard L. Teplinsky, of counsel), for appellant Teachers\u2019 Retirement System of Illinois.", "Sutterfield & Johnson, P.C., of Effingham (David Sutterfield, of counsel), for appellant Illinois Retired Teachers Association.", "Krislov & Associates, Ltd. (Clinton A. Krislov and Jonathan Nachsin, of counsel), and Kevin B. Rogers, both of Chicago, for other appellants.", "Roland W. Burris and James E. Ryan, Attorneys General, of Chicago (Rosalyn B. Kaplan and Barbara A. Preiner, Solicitors General, and Jerald S. Post, Assistant Attorney General, of counsel), for appellees." ], "corrections": "", "head_matter": "THE PEOPLE ex rel. ROBERT SKLODOWSKI et al., Plaintiffs-Appellants, v. THE STATE OF ILLINOIS et al., Defendants and Counterdefendants-Appellees (Judges\u2019 Retirement System of Illinois et al., Nominal Defendants and Counter plaintiffs-Appellants).\u2014ILLINOIS RETIRED TEACHERS ASSOCIATION, Intervenor-Appellant, v. THE STATE OF ILLINOIS et al., Defendants-Appellees.\nFirst District (2nd Division)\nNos. 1\u201493\u20142951, 1\u201493\u20143171, 1\u201493\u20143172, 1\u201493\u20143173 cons.\nOpinion filed August 13, 1996.\nRehearing denied November 22, 1996.\nModified opinion filed November 26,1996.\nSkadden, Arps, Slate, Meagher & Flom, of Chicago (Susan Getzendanner and Kimberley K. Baer, of counsel), for appellants State Employees\u2019 Retirement System of Illinois and State Universities Retirement System.\nRudnick & Wolfe, of Chicago (William J. Campbell, Jr., Richard S. Huszagh, and Howard L. Teplinsky, of counsel), for appellant Teachers\u2019 Retirement System of Illinois.\nSutterfield & Johnson, P.C., of Effingham (David Sutterfield, of counsel), for appellant Illinois Retired Teachers Association.\nKrislov & Associates, Ltd. (Clinton A. Krislov and Jonathan Nachsin, of counsel), and Kevin B. Rogers, both of Chicago, for other appellants.\nRoland W. Burris and James E. Ryan, Attorneys General, of Chicago (Rosalyn B. Kaplan and Barbara A. Preiner, Solicitors General, and Jerald S. Post, Assistant Attorney General, of counsel), for appellees." }, "file_name": "0809-01", "first_page_order": 827, "last_page_order": 841 }