the court counsel the issue that this case presents to this court really deals with separation of powers and diego deals with whether there was legal authority for those departments and agencies under the jurisdiction for common here to create an employment position that commonly became known as contractual employees there is no authority  the personnel code nor in any rule adopted by the joint committee on the administration rules which is made up of members of the legislature nor by the civil service commission we submit there is no already or the creation of these contractual employees and the personnel code dictates that are off assists and positions of employment in the service of the state of illinois shall be subject to the provisions of this act unless exempted in this act or any other there are no such exemptions since this was decided on a motion to dismiss all facts in the complaint must be accepted as true the complaint is very detailed plain appeal began to work under a yearly contract at the department of human services in february of two thousand and his contract was renewed in july of every year plaintiff smith began to work under such a contract in september of one after the complaint was file mr beale was offered a position that clearly fell under the personal he accepted that position in july of zero eight the defendants decided not to renew miss smith that was officially under the personnel code and miss mit had no job at all we submit they are allowing the defendants to create the doctrine of mootness flies in the face of the very movements the contracts allow for exploration at the end of the year on july first or june thirtieth of every year but they also allow the state defendants to terminate the contract at any time during the year for any reason mr b o and miss smith were doing exactly the same work under exactly the same conditions as were employees under the personal the only exception was they didn't have any of the benefits they didn't have the occasion days sick days retirement or to mr beale most importantly the ability again house promotions i'm sure any standard of the common law these contractual employees were employees they were not independent contractors and in our grief and also in the decision of the state labor board there is expansive discussion of what constitutes an employee as opposed to an independent countr first point is that there was no authority for the defendants to create and use these positions but the fact that they did these people were in fact state employees and we believe in title to the benefits of state employment as i said the trial court dismissed all counts on the basis of movements originally we had a three count complain the trial court that allowed us to be plead equal protection pounds under the illinois constitution and under the federal constitution and should be pleading the jew process count under both the state constitution and the legislature created the personnel this case really deals with the power of the executive branch of government to create employment positions outside of that personnel code and outside of any legislative  occurred to me the other day that in the last session of the legislature up there was passed to reduce benefits for employees who will start in two thousand and eleven the legislator in act legislature enacted th we believe that the legislature there would be no benefits the legislature had legislature had to enact that type as a statute now as to the doctrine of newness there were certain exceptions to that doctor and we believe that this case falls under all three exceptions and that the defendants really did not address these exceptions in their brief the first is the public interest exception this case involves an issue that is public in nature there is a need for guidance for the future for state officials as to whether or not they can do this and there is the likelihood of recurrence of these contractual employees in the trial court i have because counsel estimated there were about eight hundred seven hundred eighty such contractual employees in the department of human services on the below those positions were stamped us without any legislative authority i mean they have to under the contract that the seven hundred eighty have the state can terminate any time during that year and cannot review with the end of the year and leads to the second exception to the taken the decision puts the control of the move the stock trades in the hands of the defendants so that any one of those other employees that wants to litigate this they can terminate the contract and then argue moot because they no longer in their contraption employed situation the u s supreme court has turned out exception to the mood in stockton as inherently transfer toward that the cause of action is transitory and cannot and as i said we never got to the question of past certification because the court dismissed all counts on the basis of what we had a asked where's there given the fact that there is no legislative but wording for the creation of these positions then it is correct that either now it's interesting that the personnel code creates numerous numerous types of jobs the first just accept and that is when you're accepting the personnel code truly exams you are subject to working at the will of the governor or the head of your department there's the ability to hire people on an emergency basis to hire people on a chapter very basis that temporaries are not to work for longer than six months in any calendar year there a provision for professional employees for probationary employees who are certified employees after they serve the probationary period for trainees and for four year term appointments who can be appointed politically but are protected by the code during the four years and at the end of the four years there is no obligation to renew the appointment now back to me that position created by the code would be most analogous to this one year appointment if the legislature deemed that it was appropriate that should have been acted by the executive branch part of the legislature and said hey we need this type of employee who works for one year on a one year contract and it's not entitled to any state benefits but they didn't do that and therefore i think this really raises the authority of the executive branch of government we raised constitutional rights under both the state and the federal constitution equal protection because these employees were doing exactly the same or under in other words there is no rational basis for treating these people differently from the person sitting right next to the same thing i'm doing the very same conditions but without the full benefits the dependents did not follow the law and they're trying to use that to say because we didn't follow the law in creating these decisions we don't have to follow the law as to the benefits of th an irrational basis they cannot use these people in that way as to due process again they're doing exactly the same thing as the person that is sitting next to them but they do not have the same benefits there is no way actual basis for treating these persons different in their brief the dependents make mention of personal service contracts that term is not found in the statutes we think that the executive branch of government point in this phrase contractual employee for example let's take it to the extreme if every person retires or the state government for one reason or another were replaced by contraction the employe and that's happening that's a clear violation of the personal goal of the legislature ask the legislature to amend the code if they see fit to create this type of position but don't use these people claim violation of illinois constitutional rights as to the federal claim of qualified immunity act claim does not apply to injunctive relief and furthermore the claim of qualified immunity means there wasn't a case out there that said you should've known that what you were doing was wrong but we know that the eye on a case the state labor board case which we attached to our complaint was decided on march first two thousand and five and put the state defendants on notice that what they were doing was wrong in that state labor board case nurses who were working under these very same contractual  put as employees in that collective bargaining agreement that decision is well thought out it's attached to our complaint these two plaintiffs were mirrored pop employees at that time and therefore could not go to the state labor board and say hey we're state employees put this in the collective bargaining unit and treat us as such they couldn't do that so they did the only thing they could do and that is come to court and we also believe that these plaintiffs could not waive any of their rights because you cannot wave you know knowing explicit waiver of any rights and then the barber case says you can't waive those rights just thinking about another situation under worker's comp if you sign a release you know you're waiting on your rights the world  contract in general motors these people agreed to i think obey the clean air act and osha and all sorts of things these contracts were designed for individuals who are working under the same circumstances and under the same conditions and these people are doing very same things under the very same conditions and as such they have the right to have very same benefits and it also means that the legislature at least largely moot because there is no prospect of relief available richard beal apply for and received a position of personnel code is not working as a contractor  smith's contract expire this undeveloped request for retroactive relief is not really adding anything here and that these are basically perspective claims then and they are out and in that event there are no so there are individual exceptions individual based exceptions to move the stock and then there's a class based one class based exception none of those apply here the class based exception is called the inherently transitory exception that comes up in a briefing in the gerstein and olson cases and i think it's very clear from those cases that's a very narrow exception gerstein involved retired pretrial detention also involves temporary detention of an average of one hundred thirty nine days so the elements of that claim it's something that's very inherently transitory something that's intrinsically short lived with the idea that it's it's unlikely that any individual claim would remain alive long enough for class certification the record here shows that for the only two plaintiffs there are in the one case to feel was a contractor for eight years and with respect to miss miss she was a contractor for about six years and ten months so that doesn't fit this is very type of nero in inherently transitory actions and there also must be there also must be a very known clear constant class for example and olson there were fifty three affidavits from other pretrial detainees yes we're experiencing this deprivation we're right here we're very part of the class and i would suggest that simple allegations in a complaint that oh there are other people out there that's not the same thing as a clear known established class in this case when the circuit court and missionary dismissed the claims  dismissal wasn't temper of two thousand and nine you know all the time you know there were never any other potential plaintiffs who stepped up to say yes we have a claim too so i don't that we can presume there is this consequence so there is no inherently transitory employment functions in that way it's not that different from the state acting as a private employer it's not a question of the state regulating its citizenry another component of public interest the public interest exception is that the state is excuse me that the law is in some type of disarray said that there's really a need for guidance and i don't think particularly these are narrow exceptions i don't believe that this qualifies there's no split in the circuit you know personal experience the same action and i don't believe we have that here it's not reasonably likely that you either of these places to work as a contractor again the evading review sort of mirrors the inherently transitory exception for class based claims in the sense that it is something that is intrinsically short lived which the record doesn't support in this case there's also mention of collateral consequences exception that doesn't even come into play here because it has to do with certain court orders where the effect exceptions and also i'd say that there's no there's no suggestion on this record that anything is happening here as happened here that some type of improper actions for the purpose of creating movements and  has to be viewed as just as much within the control plate tips as the defendants because you know any particular plaintive can choose to not work for the state anymore or a variety of other things that happen so if this if there's anything left then the claims failed state cause of action and each claim is it specifically elements not go through the various claims but in each case in different ways the deficiencies come back to the fact that employees under the personnel code go through extensive hiring procedures that the plaintiffs were able to forego and those hiring procedures include open competitive testing that results in eligibility list ranking and there are also significant veterans preferences in fact veterans have this in the dunn case veterans have an absolute preference within a particular ranking group so with that background the mandamus claim we i might explain what you're asking about is the notion that the department lacks the authority under the personnel code to enter into these contracts and we don't agree because there are are numerous statutes that contain references to contractual employees and that cited in my prayer for that use similar language and it doesn't follow logically this is not something that's unknown to the legislature it doesn't follow logically that the legislature is recognizing the use of contractors and other statutes but the same time somehow meaning to prohibit that in the personnel code so we don't think that there's a clear showing that this is in any way on authorized we don't think that that's really what the court needs to definitively address that issue or that that interactive claims fail for the same reason that there's no clear obeid to somehow be converted into employees under the personnel code when they never went through no there is potentially recourse if this were an authorized practice to enjoin the use of another on an authorized practice i don't think either of these plaintiffs have standing for that because neither one is currently working as a contractor but there's two steps here it's not and i think that's what's important it's not in turn on authorized practice although we don't agree that there's no authorization for the practice it's affirmatively convert i don't believe that there is a so data torie prohibition personnel code i would say as a practical matter that's a really unrealistic scenario   or specific type of belief and they have to fit those elements so even if we say what's an authorized practice they don't get where they need to be to statement davis claim or injunctive relief claim because at that point this is a difference between saying ok dr this unauthorized practice which is of the belief they want they want this affirmative conversion into personnel code employees where they've never gone through these extensive hiring now i'm saying there is a distinction between an action to direct the sation of an allegedly an authorized practice and what's being sought here which isn't simply that an affirmative remedy of being converted into employees into the personnel code when they have never gone through these extensive hiring procedures i don't think that the former  i understood the personnel because they never went through the open competitive testing the eligibility lists they weren't subject to the veteran's preferences and while that is an effort to say well that's just the defendants not following their own procedures i don't think that that can be fairly evaluated in that light because these plaintiffs were also able to forego those procedures and receive the benefit of that so what they're saying is even though we never went through these extensive hiring procedures we are entitled to receive all of the benefits of employees under the personnel code but it's entirely speculative we can't conclude that these employees ever would have had a job under the personnel i believe that there is not a probation in the personnel and i think there are a lot of practical probation and i think that the union's efforts to say hey you can't give this type of work to you know other people when it should be given to us is this all part of it but again i think there are these two steps in joining a practice that's allegedly unauthorized that might be we can stop the practice but it still doesn't get them yes we are and they would claim it doesn't get them an equal protection claim or due process kind because position of employment in the service of the state of illinois shall be subject to the provisions of this sample unless exempted in this or any other act and there is no positions didn't fall under their procurement so we're saying they're not independent contractors they've got to fall under the personnel code and this creation by the executive branch of government is just plain illegal and your honor  the state later relations act would not cover them because the state maintain they're not employees i'm so glad that counsel brought up the veterans preference because these contractual employees allowed that the executive branch not only to get around the personnel code but to get around the veterans preference we had long discussions with judge can wait on that are not of record about really and we never really got to what would be the appropriate really  we believe the appropriate relief would be to the clay are these practices illegal to enjoying the executive branch from creating and filling contractual employees and then to look at these employees and say wait a minute the state took advantage of you if you work under the same conditions doing the same job it didn't get the equal benefits and shipped the right there but we really didn't get to the really issue but if this is illegal they have not taken a position on this that occasion by the illinois nurses association which is a labor union rot that case before the state labor board now asked me would not have had any jurisdiction over these plaintiffs because at that time they were married comp employees and not subject to the collective bargaining agreement perhaps today they would be an out would create a totally different situation because i believe that the expansion of collective bargaining employees has been great over the last three years so in any event your honor this truly is a case about a serious case about the separation of powers let the governor let the departments under the jurisdiction of the governor go to the legislature if they want permission to do this and get it if the legislature the representatives of the people think that