you well the briefs are fine there are copious and there are a lot of moving parts so let's talk about the time normally we do twenty twenty in a ten minute battle so if you have concerns about that which discuss it with us now may please the court section six point one fail in a public paper lation to act authorize the governor for a one year period to exclude up to three thousand five hundred eighty state positions from collective rights outside the x thirty year old statutory scheme and on an arbitrary basis and if that's unconstitutional on its face was a three hundred three thirty eight hundred fifty arbitrated are arbitrary  the number arbitrary i'm sorry i misunderstood the there is no wesh now set forth in the statute for the numbers that were chosen there is it's a number of years no legislative history to say what that number is or the reason for the  executive branch because the legislature failed to provide sufficient standards to guide the discretion the legislature gave the governor under the statute but wasn't very specific in terms of how it instructed the governor how limited the governor wasn't the wasn't this very comprehensive listening well it has it sets five categories and it sets the date time limits there is no rationale set forth for the day time limits the december second two thousand and eight there is no rights if the governor chose to designate that person there's no rationale set forth for that woman's rishon those who have to be articulated in the legislation were or is that left to work for example to discern sixty two and specifically senior public service administrator but the statute gave the governor unlimited discretion to decide which if any senior public services ministers he could designate for exclusion so he could have designated n he could have designated every other one chosen arbitrarily he could have designated employees whose names begin with a b or f and not those who began with q r n t i mean there is no rationale set forth in the statute as to how or what basis he was to go about choosing which employees in each of these categories he was going to designate for exclusion and thus and there's no i know that the state in its place status quo to show a facial challenge you have to show that there is no set public see your ministry as ignition and once that was done that was where the vetting was and so people came through that and they were they were examined in that and it was those who received it this nation or double exempt from collective bargaining they could do they could take that position right but there is no rationale set forth for why he which is within i mean for instance a senior public service administrator is the case we've had in our brief where the board in the past had found pharmacy managers who held the s t s a classification not to be managerial after an evidentiary hearing based on their fact finding duties and it found that there are entirely professional employees who work managerial and so on here the governor could have chosen set forth in our brief a couple of examples of the state the state in their brief relied on a few job titles and said that that shows that there were high level sounding titles and that shows that the governor to to exclude people with high level sounding titles but we showed in our brief that there were a couple of those people are titles that had actually been employees to mid evidence of the union submitted evidence in support of our can for so on page twenty six of our brief there is an employee in case s d e fourteen zero nine nine in the evidence submitted was that the employee job description said that the employee was engaged in developing policies on personnel matters and management practices and employees said that what he'd been doing the whole time he'd been hired since two thousand staff and was performing duties in connection with an internal construction internal website for the department employment security  and another case cited on page twenty seven of our brief in case s t fourteen ninety nine the evidence submitted was that the job description was completely inaccurate that the employee said he had never held the position of perform the duties in that job description and he was not located in the office set forth in the job description and so even though that evidence was the method the boy employed a presumption that it didn't matter and so basically right out of the statute the requirement to submit job duties process without having a formal hearing or an evidence or hearing but we submit ten cases like this that it was arbitrary and it deny all due process not to allow our hearing to show that the employee didn't do  should be removed from the clock for me so we're going to leave that to the governor to decide whether good management techniques call for him to identify it thirty eight hundred or statute said that he had to do it that way the statute gave him the number nothing in the statute sad that among those numbers he should designate only those who are managerial or only the higher it's unconstitutional because there were no rational standards given him as to how called exercising that authority so that the result was that people similarly situated could be treated differently so you could have two employees sitting side by side from the exact same duties holding the same position and he had the authority to designate one and not the other for exclusion and in the proceedings before the board the board was charged with looking at the petitions that were filed but not just looking at what wasn't filed so an employer showing a reason for an exclusion under certain specified categories and so if you read this amendment in light of that thirty year old statutory law then then you know this this amendment did not set for a sufficient standards to avoid place and exact same positions in other agencies and even though you know some of those employees were added to barking units after that december second two thousand and eight date that the legislature chose for some unknown reason it has the cut off and so that also made it unconstitutional on its face because people were protected and among the people that weren't protected the governor had unbridled authority to to choose and and in the right of the  in one agency and i mean in the end it was said history also shows that one of the agencies specifically discussed with the department of transportation but then the legislature amended those people out in section six point one  protected them from designation even though the legislative history show that that there was no one department transportation in charge because they were all in the unit so again it was you know they arbitrarily chose to protect certain people and then with respect to the people who are left  to let the governor choose instead of having an evidentiary hearing where the governor chose you know labor board i think these are managerial and i mean also statements and alleged history saying that said well represented chris said the governor will have to go to the labor board and under that statute yes but nothing in this legislation said that the governor was supposed to follow that definition in fact the board is interpreted as not requiring to add in just for crying for the governor just file a petition and designate somebody without any finding that the person is is managerial where we stand right now is that the one year time period in which the governor had to make these thirty eight hundred fifty points which only about  and the designations were made that people of their collective bargaining units and there are managerial positions and what who's driving this car and it's the result of of it  labor board seeking to was struck by parking rights for that position on the grounds of a change in duties under this statutory scheme a section six point one there is no such procedure so the governor designated some one for exclusion and that person was certified by the board is excluded and the next day that person had a change in job duties and was indisputably no longer a high level managerial there was no procedure to bring that position back into the park and unit so in effect it gave the governor to permanently a fifty the authority permanently to amend the labor law to exclude governor for one year a right to take people out in some of the people taken out i mean the you know the board had previously issued decisions finding say that employees who were ten exam too could still be included in bargaining units that they civil service exam take a survey including bargaining units because the focus was on their job duties in the farty not for civil service classification the board had found that employees who were term appointed employees could still be in bargain units so any of those people were taken out these rights they had under collective bargaining agreements that they don't have because they weren't covered by civil service and there is no procedure to get those rights back even if those people are have a change in duties and they're no longer performing managerial to  well let me let me ask you this is a practical matter if the number was thirty two or thirty three hundred positions that were made  extent that we are arguing that the statute is unconstitutional on its face we submit that the court should declare the statute unconstitutional and therefore perverse all the reverse the board orders in this case i mean all this before the court right now or these appeals in this case  mean the in the first round of cases of the governor it was over a thousand people because the c m s filed petitions over the first several weeks for about fifteen hundred people in it is of yours what we're talking you process hearing but if the board is correct if you find the boy is correct that the statute did give the governor the arbitrary earth already that and then really it's unconstitutional for the other reasons we've cited for the facial constitutional challenges of delegation to be governor equal protection and special legislation violations and that would require complete reversals of the board to sessions and the i mean that the broad procedures did not  they were properly designated but without any delay to get information and without the right to even have a hearing to show that they didn't do with what the governor said they did and we've also said that that the section six part run with respect to the  hundred employees is an unconstitutional impairment of contract because it allowed the governor to remove up to nine hundred employees covered by absence contract with the state during the term of that contract and the fact that couldn't contradict spiers anybody currently represented remains in the union and if there is a successor contract then they are covered under the successor contract but for the employees taken out during the time of the contract their rights under the existing contract were impa go right in they and they lost the benefits of the contract for its term after they were after they were removed morning and may it please the court assistant attorney general and mouse hilarious for the respondents i think it would be helpful to start out with a few broad concepts and then turning to the purpose of section six point one and then if i might i would i would address the concerns raised by abyssinian the choir during the opening argument specifically public sector collective bargaining is a creature of statute in allen the way the general assembly legislates on matters of public sector collective bargaining and a few points are significant and i were relevant to this case one there is no constitutional right to public sector collective bargaining to the act has always covered some positions but not others three a position must first be covered by the act in order to avail itself of the self organization and collective collective bargaining provisions in the acts and for there is no  constitutional statutory contractual or otherwise to a positions continued coverage under the act because the general assembly has an ongoing right to amend legislation and there is no white's a continu law turning now to section six point one this was nearly corrective legislation the general assembly believed that the act as written wasn't working as it should have been instead the inclusion or potential inclusion of top level positions in collective bargaining units had impeded governments efficient operations the general assembly took steps to correct this problem section six point one is a narrow piece of legislation that sought to return government to efficient operation it was a legislative remedy not to disrupt government operations but to fix them fro arising under the act as written and the general assembly did this in section six point one mile out in the governor during only a one year period to identify within the legislatively established parameters and consistent with it intelligible standards those of relatively few top level positions in agencies directly responsible to the governor whose roles were integral to officially running state government operations and also incompatible with simultaneous membership in a collective bargaining your net those relatively few top level positions were incompatible with simultaneous membership in a collective bargaining unit and works looted in order to assure their undivided loyalty to their employer the governor and the governor's policies to maintain the distinction between management and labor and to allow them to deal with the employer's policies and apply them to subordinates without regard to any biases that might arise from their own bargaining unit membership the general assembly charged the board with processing these designation petitions and the board did so by adhering to the plain language of section six point one consistent with due process and i'd like to to address three or four of the three or four its opening the first being this notion that that the governor had discretion to identify those positions within the legislature legislatively established parameters whose roles were incompatible with the simultaneous membership in a collective bargaining unit the fact that the governor could exercise the discretion was not unconstitutional it did not violate the separation of powers laws because the governor exercised a purely executive function and it was rationally related to a legitimate government interest realizing and returning government to fish and effective operations and so that does not violate protection substantive due process or illinois special legislation because sections despite why did not delegate to the governor the power to make the law but only to execute it a purely executive function he did this by exercising his discretion within the set forth by the general istanbul set forth by the general assembly to a trunk government operations to efficiency is it made sense that the governor could choose those designate does it does it needs from within those legislative we establish parameters the legislation allow the governor as a co equal branch of government this discretion in his employment relationship with those positions in agencies under his office and he had the expertise as their employer and the ultimate executive in charge of those positions to identify those relatively few top level positions whose roles were incompatible with bargaining unit membership and the chief functionality to determine how the government needed to operate efficiently asked me even admits that those designees with f p s eight titles performed a wide range of functions and they had roles that differed from around us so it made sense that the governor was in the most advantageous that's right under the statutory scheme the board didn't have that authority in the board can only exercise the authority given to it by the legislature i think this goes this question goes to what is a position was improperly classified  a couple of a couple of things i'd like to mention to the improper classification mind if a position was misclassified then the governor's discussion would work perfectly to the advantage of ask me and the company because the governor your role even if you were identified as an ass p s a your role is not one that plays to the efficiencies of the government so your role is not incompatible with membership in a collective bargaining unit there her exactly exactly there's also a mechanism to address if someone was improperly classified as an ass p s a in the first instance and shouldn't have been subject to designat incumbent can ask for an audit of the position from c m ask and then the civil service commission can reclassified the position as something others other than ask e s a once the position is reclassified or what the incumbent or now the union is also concerned going to the governor's use of his discretion saying you know two people could to ask us days have identical positions they could have identical responsibilities they could perform identical duties the governor under the first the first thing i'd like to point out in regard to that is ask me admitted that these ascii essays had different roles and different so there is no that they didn't prove similarly situated individuals to the extent that they did we fall under the rational basis test from holding the constitutionality which goes to the equal protection the substantive due process and the special legislation claim here even in light of the scenario i just described section six point one survives the rational basis task because the legislation still further the legitimate government object of were turning government to efficient operations qualified to identify those relatively few positions whose roles were incompatible with simultaneous membership in a collective bargaining unit in order to get back the efficiencies that the government had lost he you the way the legislation was written as rationally related to maintaining or reinstituting government efficiency is because he would know as as your question points out the governor as the employer and not the legislature per se would  speak to that but if there was a problem with the job description or duties not matching a classification as i said a few minutes ago there was a matter to fix that and either the union or the incumbent could've put the wheels in motion with the civil service commission to reclassify the position but the board had no authority in these designation proceedings to ask about job duties or to see if a position was properly classified that was in its role and a and was a member of a bargaining unit who was could have been designated hours so then he was reaping the benefit of a salary of a top level position yet he also was a member of the body bargaining unit it seems that if something was representation proceedings or any board determination proceedings made under it would be section three of the act the definition of a public employee and then they insisted that the managerial supervisory and confidential this w something separate and apart from well representation proceedings or board decisions but it did not it didn't modify any preexisting means of determining those sorts of issues under those sorts of proceedings so there's a return to the legislature minter i'm sorry has returned to the legislature is that imminent here i have no knowledge of there is any legislation pending i will say that you know this was corrupted legislation instituted by the general assembly the board you know going back to representation proceeding questions the  forehead properly applied the act that was written and the intent of the act when it was enacted in the early one nine hundred eighty s couldn't have and couldn't have bad to interfere with government operations and to cause inefficiencies but to the extent that that became apparent to the general assembly that the acts covered too many or the wrong types of positions to the detriment of governmental operations it in acted this legislation and so the general assembly sought to redress it did but let me explain so the people that were designated iow it came out of the collective bargaining unit if they were already a member but a position first has to be covered by the act but because the general assembly decides the positions that are covered by the act three and the state and the union don't contract for the coverage of positions that would be a le here only entitled to collectively bargain and and reap any benefits from a clock to the bargaining agreement if your first covered by the act the parties c m s the states and the unions don't contract about positions covered by th only reaps the benefits because they fall under the axe protections the composition of bargaining  sure but that doesn't there's there is no breach of a contract time because the parties can't bargain over who is covered by the contracts that act aside who's covered under the act and once someone is not covered by the apps they are not entitled to be a beneficiary of any collective bargaining agreement i will tell you that the composition of bargaining units changing people coming in and out is nothing new if there is a representation petition filed if the union files a representation of petition to bring people into a bargaining unit that can happen during the pendency of a collective bargaining agreement but it doesn't impair the terms of the agreement i'm sure absent wouldn't agree to that but i'm sure absent would argue that that impairs the terms of being the agreement positions routinely go in and out of bargaining units but that has never been held to violate a collective bargaining agreement under impairment of contract