possibility of performance applies so if i've been training see how it's possible for me to argue my appeal which is that in possibility the performance doesn't apply issue if there was a different ruling and the ability of the action taken by the authority and behalf of the school district to cancel those contracts because asked but with other vendors and they said well you know we change your mind we're short of money to the state of illinois we're going to break our contract with you a contract that the authority sign and i suggested it makes perfect sense because there are cases out there that say the states district's lease with human rights is there a difference yes is there a difference with a meaning i don't believe so because the fact remains that the a story is acting on behalf appear in the statute if the board making the country cancel your contract and find a contract appear in the same right in the purpose for that is the same as it was for the chicago school finance authority who never cancel the contract said not only do i want to have a lease of the property but i must sell alcohol that's what it did then because they knew it was coming so when it did come to constitution was amended its statutes remanded and they could no longer sell alcohol and bellies had a specific requirement that they had to sell alcohol if it was the lesser of course got money out of it cherished right i mean would you concede that if the district wrote checks which they're not alliance doing don't leave under the authorities act they don't have control of their finances i don't think in any way ah even if they took an action in direct violation with believe however they can pick and choose among a class that say i'm paying you and i'm not paying you know they can't well if you the recent the director of insurance is given title ten with a from the insurance company right he's g school the school come they operate in the school in addition to that you can now give the school authority and the cayman which covers specifically this district and they're ordered under that if they're under the act plain reading of the act would say they have to follow the well you know my argument with respect to with respect to this case it is number one in possibility every case they didn't adopt a statute the statute didn't cancel the  the statute didn't force anybody to cancel the contract in effect the statute probably doesn't authorize the cancellation of contracts that are existing at the time the authority was there the statute says what it says that  authority he had the authority to because the problem and the any school district isn't and by the way there's one other thing it talks about a valid action and that that the school district must follow of follow valid orders it's the statute that i've seen that ten years in order to determine in order to determine whether it better is valid and you know if they could do so they could make a determination that it isn't  of an obligation to pay whatever it is the courts have said you can't do it and even worse circumstances even worse circumstances and in a possibility certainly isn't  please the court system attorney general crow ill it's appearing for the his across will district school finance authority your honour's this case is kind of a procedural mass and if i could just sort of back step a little bit and sort of explain why i think the case should how it should be decided he didn't make it simpler i think i should be here but only as an intervener and not as a party once that's figured out whether you agree or not then i'd like my view about whether what the statute allows and doesn't allow is my contention that allows the authority to cancel the innovative sconce tract if the court agrees with me on that point then i agree with my opponent i think just said which is you don't need to get to the possibility argument although my co counsel mr floor will certainly talk about that so the guts here is what the statute allows the authority to do and whether that's constitutional i'll get there but with your indulgence i'd like to just explain why i think that the judgment against the authority should be set aside on grounds that  procedural the declaratory judgment act doesn't provide for this sort of order there's only one branch of government in in our system that has the ability to declare what the law is absent a concrete dispute between citizens when there's not a concrete dispute between citizens the courts really don't have any authority to act that's what the declaratory judgment act does it creates an exception to that rule and i don't think this case falls in that exception the exception is that when the parties are about to have a dispute the courts can intervene and tell them what their obligations are so that there isn't uncertainty and problems that are caused by the parties not knowing what their duties are in this case the trial court decided before reaching the question about he thought his obligations that it was impossible for the for the form for my co counsel to perform didn't need to get to the question of ballot the authorities authority under the statu and so when she entered when the trial court judge entered judgment in february of last year there really wasn't a dispute between the authority and innovative it had been decided and for that reason the court should not enter judgment now she had made a finding and that finding went against finding but not about the judgment it's a technical point i'm sorry to have to make technical points but i think the question could be put why do we care but judgment should be entered against parties who are not in a real dispute and so to urge the court to set aside the judgment that brings me to my question which i think the court still has to answer which is whether section one f twenty five two of the authority act grants the authority the power to cancel innovate its contract my argument is that it does it says plainly that the thirty has the power to make cancel modify its contracts and leases this is a lease the last sentence of that provision is very telling it says  have regular special meetings fine a district has insufficient or inadequate funds with respect to any contract other than a collective bargaining agreement that's part of the same provision that i'm arguing about the general simply isn't ted there i think it's pretty clear it this authority which comes in and looks and sees what can afford to be paid and what can't be afforded paid into the just make those tough decisions without touching collective bargaining agreements the general simply was clear about that i don't think that leaves a lot for the authority to arrested was just going to collapse and this statute was passed with that idea in mind i suggest you know most realistic the act as you just read it does leave a great deal to be canceled you could cancel every employment contract except collective district those who bonds but we're dealing with a debt or an obligation the obligations a tough word but i think you know there are a creditor of the of the district and under the under the statute it's my contention that that the authority has the power to come in look and see who is owed money and decide some parties cannot be paid if the if the district is going to continue to go forward my opponent argues in this pushes into my might my next point my printer argues that that violates the constitutional provisions the contracts clause and so that can't be what the statute means but that's not what the contracts clause has been interpreted to mean under longstanding precedent going back to the us supreme court there contract clause and now assess the state can step then and say we're going to know if i that obligation it is when the state does that the courts have to apply a balancing test which balances the interest of the parties with with the police powers that the state is trying to exercise in the purposes behind the police powers makes that tough decision about whether this is or is not one of those situations where the state can set aside private parties rights and i would suggest to your honor's that  case that was an appropriate exercise by the authority to cancel the future payments that were due under these contracts so when you talk about future payments you talk about how humans became you annoying after you saw the the then then the third school in the bunch that was the last school and i didn't articulate this when i began my argument but it was i would argue that the when the bunch school was removed that's when the relationship between innovative and the the district ended because there was nothing to be done at that point that's when the case became moot with regard to the authority not with regard to the district and that's when the entry of judgment became improper after that point in time the decision was made to appoint by your office  penalty in the court of claims act would provide a defense but not for a request for the court said make a declaration or to to perhaps issue an injunction telling the parties what the law is at that at that point i think they have us in court fairly and we have to we have to appear and argue well i suggest you may want to look at a very recent case s p v versus c m s november eighteenth two thousand and ten number one zero eight six seven three not trigger the bells and whistles that would cause a g s office to say this has to be decided in the court of claims because there's going to be a money judgment entered if you prevail that was i think his his intention of framing this as a deck action and  order saying that those counts against this already were dismissed and then there was an emergency motion and i actually got to appear in circuit court which was a great thrill for me because i never get to do that but yeah and then judge mcdonough they buildings and how that inner ties in to the legal defense that the court ruled in favor of the school board the police prescribe board before the take over head to head the goals of educating the students in the same level as other perhaps in order to accomplish this they needed more classrooms they want to smaller class sizes and that led to the renting of the mobile classrooms and we're talking about mobile classrooms as as you inferred literally these can be moved they're set up the occupied by students when the students are taken out they can be moved to another location in the fact they were after the haze of course school district authority cancelled the lease they were moved they were moved to other schools they were released and they were actually sold in some cases to correct the point the rent was paid for each time period that the school had had possessed the units they were their own fighting not the future payments when they units were already in some other schools hands sending a letter and there's this a kind of a misconception going on by by counsel for the plaintiffs that the school did anything with the leases once the school districts read to them over classrooms and this is in december of two thousand and two when the school or school of educating its students in the same level by for my smaller classes just failed because of the finances because this public school funding in illinois we're not talking about budget problems we're talking about the verge of failing to make payroll literally shut down of the schools the unthinkable where the only public school district closes in the middle of the school year students are out on the street public schools are not supposed to shut down there were stress or be a refund then through property taxes through state money but that unfortunately was insufficient for the hazel chris school district the property tax says were mostly insufficient the state payments w insufficient for the goals that the school district had set up for educating students so what happens next and in the face of this crisis the state took extraordinary steps we're talking about extraordinary crisis this is not the every day once a month once a year we're talking at once a fifty year event where the state has to come in take over an independent school board completely take over the finances eight elected body the school board of education which one day had control over the finances control over educating students literally the next day they had no control so again this is floating misconception that the school board it could do anything after the takeover is wrong this the authority  control the credit cards the authority control the checking accounts everything the school could do nothing it was eight in the sense eight employer employee relationship master servant parent child relationship there the authority did it all and had it's been a similar situation but it again it's critical that to the to understanding that the defense is and i was raised by plaintiff that the school district was powerless but in a sense the school board now after the takeover is called the cross fire between the state of illinois and the plaintiff the state comes in still cancels the contract the school the school can't take any action they are not legally in client to take a position contrary to their client's position which is releases need to be canceled to keep the school district o and one else happened you know what were the other consequences of the take over it it's critical because the question was asked was this only contract that was cancelled no a third of the staff was it was like you know the buildings were the school district was consolidated the financial rescue said we're taking all the little community schools and consolidating them are shutting down school buildings were firing a third of the staff were firing teachers roommates and to do this they gleason needed to be canceled that was part of the consolidation effort to sue the authority c f o said this is what needs to be done they carefully analyzed the facts of each contract and made the hard financial decisions again we talked about that after this cancellation the notices were sent in this is were two to three approved this was not a rash decision this is not was not coming in and just willy nilly saying we don't like the bender and we're going to cancel the leases this was a carefully planned consolidation reduction of the facilities over truly a few period these four facilities the mobile units were returned they started with  the bond holders pay money to the public entity they spend it and can't get it back no this is a right to give a mobile classroom they can the the balancing that council talked about occurred it did they lose some profit piece of profit for the heat for the future possibly depending on how much they got from the new schools but they were able to recover the human spirit of the put them to marketable use and to mitigate the impact on itself and in the impact on the entire community and we had me we had a business that was seen months before when this things were good from the public school things went bad they got their customers back and i still want money blood out of a turnip as is probably the  should have disregarded we should have made a determination whether or not this case the leases was valid and do something about it so that the leases were maintained again under the structure of this the authority act that i lease is that was statutory allowed in constitutionally allowed were done with a case in possibility fence doesn't come in because that the contracts are over the school district is facing no liability no damages but even if the case and this is a textbook example the rare big stream example of in possibility defense again if the authorities right wrongful conduct are right conduct which we believe was right we believe a statutory allowed we believe was constitutionally allowed but again let's let's say if somehow wasn't the trial court may have been right the school district does not face liability because it was legally impossible to do anything with the leases to continue to perform of performance they lost the use of these buildings they lost the use of more questions for the students he had the date literally the ballsy code they performed the best that they i don't want to beat a dead horse they had the authority i have to repeat a different he was in control of releases over the finances the school district was but a player in this process that's not appealable until the end of the case until a trial so that's why it kind of got caught in a normally ends land of what do you do with this denial of the motion so i just want to make you aware that again i'll reply by saying everyone suffered in this process the students of his lacrosse suffered the board member suffered the community suffered the contractor suffered the state public school system suffered when any you single member fails and that's that's just the harsh reality of what occurred in this financial setting and our school funding in the state came in did the best we could do with a very difficult situation and it was wrong according to law and we assume that you were from reverse the judge's ruling in favor of the authority but as to the school board affirm the than saying yes if you accept their first thing they don't belong here i'm happy with that because they're saying there's no inverse of the between th and i think another reason that not being is because it's kind of clear that you kids greet him with kid the legislature can't bring it to an entity that isn't the legislature him delegated to them without any kind you can't make a contract unilaterally certainly can't modify it you know laterally and you certainly can't cancel you know where and that's not what the statute said and if you interpret it that way it's clearly unconstitutional because there are no standards upon which to determine what creditor gets what creditor doesn't and you say gretna pay you but we're going to pay them and when you asked me before about are you expecting the the the taxpayers to pay i'm just saying that they made a decision as to what display what not to pay and if this was bankruptcy or receivership which by the way it's always receivership is one that monitored by the courts which it isn't here so this isn't a receivership but even if it were we're still entitle to judgment for damages that's what the supreme court has said so if the only issue here is whether the possibility that should be the issue and you know what it isn't impossible because you see they could have been held under the act they couldn't have been indicted under the act the school district just taken the action the school district could have