on today's appeal and that is whether or not a person who claims to have been appointed to a public office has the right to seek a declaratory judgment against those who have the appointing power when there's a disagreement about whether he was or was not woefully appointed it raises a second question of whether there actually ever existed a second they can see are for the governor's action now the order that is before the court today from the circuit court adopting arguments of the state defendants and it builds on the very unfortunate mis characterization of the  complaint and review of the issues so to clarify the complaint was not filed as a breach of contract nor an employment law claim claiming lost wages or other rights of employment or really the question about what is the well the requirement for appointing a person to a public office such as arbitrator of the workers compensation commission for that peter a saw and interpretation of the law applied to the ok and if there was no vacancy there would need to be an injunction to prevent any attempt either by the commission or the governor to appoint somebody else to the same position and it just stands to reason you can't have two appointees for the one office ultimately the court was convinced that the controversy would not have been did you have to claire tory relief had been granted in frankly i think it's obvious from reading the pleadings that it would have been either peter a plan was appointed by the commission through the reappointment process and that process was either illegal or it was not if it was legal and if it controlled there was after the oral argument before the circuit court of where the issues even raised but fundamentally it was the position of the defendants that a proper action was and stated in dismissal under two six fifteen was appropriate and the circuit court agree the the problem that we face today as we have a court ruling dismissing the case prematurely without addressing the fundamental question and i think the question that you just ask is the question what is the that your position is a statute is not that's correct so quickly addressing the questions that the court ruled on the court made three fundamental firings that a look at quickly the court found that the new public act applied but the only part of the act that a quite in the circuit court's opinion was the fact that a holdover in office could only stay in that holdover status for a maximum of sixty days asus part of a revision to keep governors from being able to have fellow verse carry on indefinitely due to inaction by the senate or a failure of the senate have time to consider a proper new appointment with that nobody has any question but that certainly wasn't the issue that really should have been before the court the arguments were made in the court found the sovereign immunity barred injunctive relief because as the circuit court believed it didn't have the power to order the governor to make the appointment creative vacancy notwithstanding the attempted reappointment so the court misconstrued the entire were late and assumed that the whole point of the lawsuit was to compel the governor aikman based on the new stitch tory provision it's something that was not before the court or raised by the plaintiff and the court found that the clerk or it really would not have ended the controversy and indeed as i just mentioned it would have there either was or wasn't a lawful appointment and if it was a lawful appointment the governor's power to fill vacancies would apply when the vacancies next arose but it would not have been on now july one two thousand and thirteen of this and if i may i think the evidence would have shown that that that has been the history of appointments for a hundred years that reappointment are often gone shortly before the to the end of the term so that the powers to change the office and we have to distinguish if we get right down to the merits here we have to distinguish changing the procedure for office from changing the procedure for someone who's already any of those vacancies and for all future years the governor indeed would have this authority but the legislature can't pass a law ex post facto and take away and appointment that's already been given to the whole point being however that under the state of the laws existed he was appointed to begin them term and it was intended by the commission that that term would begin on july one  record and so they tried to rescind the appointment and when we grabbed the complaint in fact that was the the status of things that we were concerned about i think that's become a moot point or one that's so far off to the side just  irrelevant to the arguments now but they attempted to rescind that that would have presented yet a different claim that needed to be answered and today does not need to be and so that fundamental question is does the general simply have that power to in essence retroactively take away reappointment done in accordance with the law immediately prior to it because of a change made two or three is a dispute and the only argument really have the defendants make in their brief is bad declaratory judgment has to work more in a prospective fashion not retrospective like and i  would be useful only if it somehow resold issues moving forward and that's what would have happened here because the question is if peter bateman was awfully appointed could anyone which lie one that anyone would be the governor make an appointment if the court agreed with mr eight men they had indeed been appointed and there's no vacancy the governor would know in advance what he could do what he could not do in terms of making an appointment if he were properly appointed then the governor would know there's a vacancy in mr aikman would know that his service as an arbitrator had concluded and so fundamentally if this is the very argument then even the defendant distracted the court and led to the erroneous judgment with sour immunity even the brief of the defendants acknowledge that sovereign immunity is not a bar to an action seeking to prevent a public official from acting in excess of his authority and that would be the case for the governor making an appointment to the position peter apeman occupied and at the time the complaint was filed and not only then but at the time to pull in an area injunction hearing was held and not only then but at the time that this court heard the appeal on the problem area injunction the governor indeed had not yet attempted to act to fill that vacancy and so everything that was being sought were only for the prospect of relief of getting the ruling on the declaratory relief that was sought and the injunction that would be needed to protect the power of the court issued its ruling by way of prohibiting anyone from attempting to fill that office peter raven claims that he is in fact the law appellate or supreme court guidance on questions of this kind but and the argument wasn't fully developed before the supreme court because of the court's ruling but indeed the general assembly cannot ect in an ex post facto that's known from the only constitution in my apologies to the court for not having a brief that point because i didn't intend to reach constitutional questions on a motion to dismiss and so that is the fundamental question though that should be answered whether this court decides to intrude in your opinion or whether this court directs the circuit court to consider it first is does the general simply have the power there's no question in this and this record by peter reitman that the general simply has the power to make changes to the process by which the workers compensation commission is organized and armed traders are selected the question is whether or not when you have already in place certain people who have been appointed they have a vested right to continue into office to which they've been appointed prospectively when it deals with the rights of people who have already received something tangible that the wall recognizes and protects ultimately i don't think there can be any question but that the law recognizes a property interest in the appointment of this kind because it carries with it a given term and that term cannot be disturbed under the worker's compensation act except for some form of action that can lead to terminations and that requires some showing of cause and proof that some kind of improper action misconduct has infected occurred now that's the nature of the rights that the general simply gave when it describe power in the authority of arbitrators to assume office so you gave no property interest to peter eight when it settled the procedure for reappointment which was followed and that we believe vested men with that authority for yet the next three year term of office so any legislation that this court might interpret as taking the way that right once conferred would raise the due process question would raise the question under the only constitution of whether it constitutes either special legislation or an ex pat ex post facto application of law under any of those scenarios we believe aikman was properly appointed at the public it does not take his authority away and one final point as to that a year earlier the general assembly head passed a much more sweeping so called worker's compensation reform in that the general assembly actually put into the state use it provisioned it terminated office of every single arbitrator upon the effective date of the bad law and created a new process for appointment and reappointment now that case is not before the court but the general assembly very clearly evidenced its intention to terminate those terms of office public at ninety seven seven one thousand did no such thing even though it amended within a year lee incorporated that precise language in intention so the court would be called upon to win favor of the state to decide that merely by implication when the general assembly is shown very clearly and knows how to terminate offices and start a new process they merely by implication that's what was intended in this case  appointments that happened that mesh with your argument that once you have your term walkley appointed them the legislature can't go back and terminate some of those who are terminated mid term right in in the middle that's not before the dismissed on a due process question but before the court here off only one third of the arbitrators had a one year term like mr apeman that came up for renewal and he was renewed but the distinguishing part was the general simply evidence to its intent a year earlier to terminate terms it did not do so now even though he acted after mr aikman was appointed for these reasons we don't think that the act can be interpreted by the court is having a direct intention by the general simply to in fact accomplish that and if not and even if so it still would be an ex post facto application of the law that should not be there is nothing that prevents this court from deciding ultimate question in this case which involves the application of the new act i'll refer to it a public act ninety seven dare show seven eighteen to the  ppoint the procedures for the term of office that the plaintiff claims he had a right to occupy we don't believe that there is any constitutional question here we think it's strictly a matter of statutory interpretation the plaintiff tradeable for the new act by not mentioning it in his complaint although it was filed months after the new act took effect and he had actually left office person went to the change in the point of procedures we also don't think there's any procedural impediment to the court deciding that question to a future term of office i call that an anticipatory appointment of beginning at the end of his one year term that was going to expire on july first of two thousand and twelve several months before that the commission said we're reappoint shoot to a normal term starting on that date they did so before their term began and the statute in effect at the time they took that action gave the commission the power to statute was then amended before their term began to change the procedures for renewal points to specify that the governor is responsible not a commission for making all renewal points that  said it took effect immediately and made clear we believe that it was that it applied to this term of office that the plaintiff claimed he had a right to occupy and i'm going to return to that statutory interpretation issue in a minute  as the defendant search eliminates the need to deal with the declaratory judgment injunctive relief sovereign immunity issues and everything else is does this statute properly interpreted changed the procedures in a way that applied to the term of office that the plate of claims a right to serve which began after that new statute took effect and i would say that even more specifically the question is whether that new statute reflected  attention by the general soundly to create an exception for the unusual circumstances that are presented by the plaintiff's claim here which is there was a early appointment made for a later in time date but that term hadn't begin hadn't begun when the new law took effect let me turn the constitutional issue here because i want to clarify what we believe is not age it is our position in there is long it we're not dealing with a constitutional office we're not dealing with an elective office we're dealing with essentially an executive office that is created by statute and the lawyers clear that the general assembly has absolute power over that office at all times it can abolish the oh yes it can to change the functions of the house it can change the compensation for the office it can change the manner of making appointments to the office that is an all in cl the position by virtue of the in the purported appointment made by the commission before the new law took effect there is no basis for that because the right the ability to claim a vested right in a position depends upon the background war that governs that position and the background law in illinois is it can be abolished at any time there's there's hence no argument that the earlier law the justice pope alluded to that terminated all terms of office during their course there's no claim that that was unconstitutional it was clearly constitutional this isn't this isn't a situation where somebody is elected to a particular term of office for a specified period and which point the legislature cannot interfere with the electorate's ability to have their office filled for that period of time it's not a it's not a constitutional it's likewise and let me say you know that we're talking about executive appointments i'm not talking about judicial appointments or things that would be subject to separation of powers principles and so if the back of my lot yet is that the general assembly has always had the power to abolish these positions they did it before they can do it again there can be no vested right in an office where the terms and conditions of the office are always subject to the condition that the legislature can say thank you very much for your services goodbye we're done we're shutting this down we don't want this office anymore you know we'll pay for the service that you provided up to this point in time but we're done so and there's another aspect even when you get beyond beyond the constitutional argument of ex post facto or if you want to call it some type of substantive due process right  fill an office there is also the you know sort of the principle of longstanding recognition that statutes should be interpreted if they're in big us about their temples knapp's to apply in a retroactive manner there's doubt about what the general assembly attendant intended the presumption is that it should apply only prospected but that's actually what's happening here is that the station is applying only prospected lead makes it clear that it applies to terms of office that beg for yes and that's the key point and it's fess up on is that it becomes law immediate it takes effect becomes effective immediately pun becoming law which was before the new term was supposed to take effect and i would add that even that sort of background principle of stairs period for patient doesn't really apply here isn't implicated here because the statute is unambiguous lee clear that it applies to the very term of office that the plaintiff claims he wanted to occupy it's temporal scope is clear if you look at the if you look at the text of the statute in it's reproduced in the relevant part of page nine of our supplemental appendix it makes it clear that the governor shall make all appointments to renewable terms including terms expiring july one two thousand and twelve how could it not be clear that the legislature intended this to go gubernatorial control over the appointment process to apply to the very term then he says he has the right to eight a person with the power to make an appointment can that do so for a future term of office beginning at a later date in a way that locks in that appointments effectiveness next twenty years and those are going to be effective most people have a vested rights to occupy those offices nobody to change it now the law idea is that when the term of office speech again is it the appointment is legally effective and valid as of that point in time then in creates the principles of effectiveness that somebody can in vote and then you would need a greater action by the legislature of lawmaking by the cutoff at term of office but intice atory appointment is different because it's always subject to a change in the person who has the legal authority to make the appointment and those cases i think are well illustrate the lack of at witty to the plaintiff's claim in this case which is he had a hope that if in fact the commission continues to hold that power at the time that the new term began they would hit the premature intice of a tory appointment would be deemed effective at but we don't really need to reach that issue because before that date began the legislature exercised its thirty to change the law but if it was later changed i think i'm going to make the proverbial comment which i know you always love that's not may become affective if at the time that the term begins it's otherwise about i don't want to concede that is a proposition of all but i will accept the notion that maybe that's the case but it doesn't have any legal the legislature a long way from body power to change those rules and it's also run against the general proposition that you you know that that the notion is it doesn't become valid intil that the beginning of that term when you still occupy the position i do want to add another point which is in this case there is a there is a question which is why i sort of want to qualify my answer to just a statement question which is the should specifically says that we appointment shall be made upon the expiration of a term and i think even if as a general proposition may be anticipatory appointments might be deemed valid if the time the term is supposed to begin there or otherwise in compliance with the relevant appointment current in this case this statute is clear in essence that any appointed to be valid you know to be a fact of couldn't be locked in if it was made before the beginning of the term if anything there just reemphasizes the notion that the legislature had the ability to change the rules of the road before the new terms began i don't know that i need to really say anything more about the prior law the argument made by opposing counsel my friend mr draper here where he says that that you know where the legislature cut off terms midstream is explicit in this case they didn't do so there's no real contrast there because it's just spoiler pope pointed out with respect to this new way that took effect in two thousand and twelve there were no terms that were cut off midstream it only applied to the appointments for terms upon their exploration at the at the end of the periods prescribed by the older law no term was being cut off being you know mid stream if the court wants to consider questions of fill principle here which were never raised below and i think we're overdue i'd be glad to accept rise about them but i sort of who don't think that there's any merit to it our position is that there wasn't some type of vested right based on this really good point beyond the power of the general simply to change retroactivity principles don't apply either as a matter constitutional protection of some type of contract right or as some to fold principle of statutory interpretation of the word of an employee of the government there are an officer of the go there on the point of officer and the terms of their engagement are governed by the controlling statute in the legal principles that have been applied to the statute so it just really to summarize i think the court has its arms around the relevant issues in the case position is again that it is a question of statutory interpretation to the general assembly intend to create an exception to its terms or renewal points for the types of the type of circumstance we have here with a pre act an commission and i urge the court to conclude based upon the length of the statute it reflects no intention to create such an exception in fact it does the opposite it says that all appointments are to be made by the governor terms beginning after terms expiring on july first two thousand and twelve it makes it clear that renewal appointments both in the prior version of the act and the new version of the act are to be made upon the expiration of a term there all to be made by the governor i don't think there's really any room to argue that the statute is subject to interpretation on the basis that it's ambiguous to the extent that the court would think there's any ambiguity there with respect to such an alleged exception the legislative history makes clear we believe it is consistent with our interpretation of the spirit of the language that it was not intended to allow the commission to make any renewal it was before or after august twenty sixth two thousand and eleven that's the date of the so called worker's compensation reform legislation not the current act and i'm wondering and i don't find what counsel just alluded to that said for tolerance expiring after july one one read for july one two thousand and twelve to be in the language of that that was provided i invite the court to read a carefully i just looked at it and i'm not prepared to say it actually doesn't say that anywhere but i cannot find that i would lead counsel also clarified something on which we both agree this is a question about who holds and on stage a tory office not an employment law question and an employment law question could soon the problem married junction arguments about whether this will launch in the court of claims and whether this is an action for monetary damages as an adequate remedy we're not addressing that rulings already in place but when it comes to the most important issue i was alarmed here the word forfeiture when it comes to forfeiture the attorney general appeared in judgment there was nothing in the motion to dismiss which is in the record and is only three sentences four sentences long mentioning anything about the argument that public at ninety seven seven eighteen altered the process and effect because the arguments were being made that the case had to be dismissed for jurisdictional or fundamental reasons extreme care was taken by the defendants not to go into the merits of the case because that's exactly what we were seeking so here the argument that forfeiture of twice when it's the state that induced the circuit court t confusing or op is it's disappointing the real question is under the supreme court's guiding status this court his followers many times stead shoots are going to be interpreted according to the plain reading of the words on the paper any time that's possible and that the court will reach to great efforts to make sure that that's what's fallen only and ambiguity that must be resolved might resort to any other review we're in public at ninety seven seven one thousand does it say in the plies to appointed they had done so a year earlier they did not and there are no words saying they out those vacancies are being created it only applies to the appointments that were going to take effect why for the turmel starting on a name for july one i think a plain reading of the statute evidences an awareness that that's not what was being done they didn't take any action to terminate it there are no earlier so i'm sorry but you're a guy who's out so for those reasons we don't think the law did what has been urged i'm just going to do something a little unusual mr to say when mr draper started arguing he asked a question that i see let me turn to page nine of the appendix i think if we're all on the same page literally and figuratively that may make it easier for me to present the exposition of our position made by the governor under the two thousand and eleven will go as including terms expiring on july first two thousand and twelve so bad is the term that the plaintiff was previously way when you get down to that next paragraph upon the expiration of a term the chairman shower evaluate the performance of the arbitrary may recommend to the governor and then the governor with the advice and consent of the senate it sort of you know cutting to the conclusion here i don't see how this language in a law that took effect before july first of two thousand and twelve to mean anything other then th renewal term in other words a successive term for somebody whose initial term was expiring on july one two thousand and twelve was a term for wish the appointment had to be made by the gun