the first case on are called the docket today tuesday march twenty two two thousand and eleven is agenda number nine case number one one zero six one one bait of illinois versus alexi  caption counsel for the balance good morning justices my name is rod taylor and i have the privilege of represented representing the opponents in this matter bit of all knowing gene and they go to my left i'd like to start by going back to a time period prior to this act of the cycle rider safety training and back in the one nine hundred seventy s if you will if you wanted to learn how to ride a motorcycle in this great state all you had to have is a driver's license be sixteen years old and have the nerve or whatever you want to call it to throw your leg over a motorcycle and go out and practice on the highways and byways of this great state and this great country with a mack trucks in the kenworth hole in the lawns in the chicago tax a cab drivers maybe the springfield tax a cab drivers you get the point that was not a good circumstance all that changed when in essence a wonderful thing occurred motorcyclist came to the good legislature of illinois with a proposition a deal a motorcyclist in essence said the legislature or worse we will put our money where our mouth is we'd like t partner up with this good state we'd like to fund a rider education so we can change the way a motorcycle learning occurs in the state and of course the of the motorcycle motorcycle safety foundation courses would be taught but it would be done throughout this state that would be a vital bill to every motorcyclist regardless of their financial circumstance it would be free and it would be professional and we would save lives but that occur folks and life was good of the good state of illinois through its department of transportation set up free rider education rider education courses throughout most of our universities throughout our junior colleges and all you needed to have was a driver's license and be sixteen you were eligible to learn how to ride safely those folks to learn how to ride safely on motorcycles and that's an intense defense of course as you can well imagine but the same folks that later on hopped marchers forward to about the year two thousand and four we have this what i call wonderful range meant a partnership of private citizens using their phones with the w skills of government administration like the department of transportation to do the right thing times were tough the state of illinois the legislature looked at phones and there were some excess funds but the motorcyclist had put into the cycle rider safety training time looking at the history of all this came from but there was a lot of a lot of intention here that the state didn't have the money to provide this funding this training this teaching for free throughout the entire state so really a motorcyclist came in the deal was with the state of illinois that they would take a certain about of bet money and put it in a cycle rider safety training fund outside the state treasury in a trust to be used pacifically for that purpose today's complicated government you know we have this private government partnership type thing it's ongoing we can do things that we can't normally afford to do and we have to have help from the citizens to come in and do it in the medical society case up in wisconsin there in those doctors up there put money in a separate fund it was her own leader of a administered and that was to take care of basically the liability issues they had a critical problem up there with reference to medical malpractise matters all right they took it on themselves and they partnered up with the state government of wisconsin who didn't really have the funding to do this and they did room playing with their own money outside the state treasury in a trust just like what we have now of course say what you will about the various funds that we have in the state there are a lot of special funds five hundred or so but this fund extraordinary is only special it is one of the few outside outside the state treasury it's held in trust it's funded by a motorcyclist and all about saving the lives so no wonder it's a very  the matter of fact i would say it's the most special fund at this state hands to safeguard and if you take a look at the the legislative history down the road and i'll get into that here in a second but clash that occurred among the legislators talking about this she should i set all that out but you didn't get what i would submit to you justices is this cycle safety training we had this partnership with motorcyclist in the state of illinois to administer this wonderful deal and everything went great until all of a sudden desperate people do desperate things and somebody is looking around kind of like a beagle in a forty acre field for extra money that they can use to pay down some of our debt in this good state and they found extra money in the motorcycle safety training from all right and they grabbed it well the legislature took a look at that and they didn't like that because they knew what the pact were us with motorcyclists in this state backpack was that money is to be kept holy it is it is to be kept to make sure our sixteen year old sons daughters grandsons and granddaughters that so they made that act very simple how much more simple can it be to say that we're going to put this money in a trust and we all know what the meaning of trust is we all know what the meaning of out the side of trust me you look up in webster's dictionary outside means beyond the limits of the elementary but i i look to death just  reassure myself in the process to be used for a special purpose the cases that i find he worrying about this area there are four cases one from denny kentucky one from up and michigan one from way on colorado and one from ohio the two cases that i hone in on th give me the off feeling if you will about the right thing to do or that is the one from kentucky and the one from up from wisconsin closest to us for whatever that counts i would submit to you that the law in the state of illinois and i've cited that on and on to you in our briefs that an interesting concept in the wisconsin case quite frankly i think it is that case stands for the proposition that the doctors themselves for both the or and the beneficiary if you recall the appellate court decision in this case they they were basically toyed with the issue as to the an education fund for a nephew and if he didn't reserve the right to revocation but money's there of course the uncle could quit funding it could be getting into it much like the lot that didn't belong to so i would submit to you that the language that the language in this case is abundantly clear that we have a trust set outside the state treasury is funded by private folks tendering their money to basically a partnership management operation with the state of illinois to provide a rider education that is good and competent throughout the state but state that program is a wonderful program i only wish i had statistics to share with you as to the number of long knives injury and that sort of thing that have been saved because of that program but it's a good one not only from a motorcycling standpoint but as i said earlier just those wonderful defensive skills that are learning that can be applied when you're driving a car or truck a semi  you've seen of course those are always public funds that was a settlement from the tobacco cases always public funds and over in ohio they were in the general fund that case is totally totally different than our case good thing i like about that he says it cites that wisconsin medical society case which is on all fours with our case absolutely mirror image another case that has come to the forefront is the thompson reinsurance key standing kentucky again i wouldn't even pretend to compare saving lives with reinsurance issues i know finances are important and we've got to keep you know things i love or i'm stable and balanced all right and reinsurance is good but to compare that with saving lives in a cycle right or so you can program is no comparison to be very frank with you but even in that case the state of kentucky again we had funds coming from private sources being put with the state to be held in trust outside the general fund the state of kentucky desperate people do desperate things and again looking around for some funds to pay down some debt they swept those phones they borrowed from those funds to spank or to kentucky said look even though it's desperate times folks we still have to follow the rules the rule of law all still applies here and they can't take somebody else's property without paying them for it body that's changing all the time membership can go from the original the machine from ten percent to zero the body's a chain can a legislative body that exists today b justice freeman i would agree that no current legislature should be able to bahrain to any future legislature in any fashion whatsoever with public funds with general funds or even levels that are currently applicable th but one key difference there in ohio they have a circumstance with even when they put them in and we voted to trust they automatically revert back to the state general fund interesting enough so that case is confusing to me and for a good reason would not it would not be impressive to me if i were in your shoes with that case and it wouldn't be impressive to me because those funds come from a tobacco settlement tokay from a far ok it kind of sort of smacks of it but it really doesn't want you to kind of strip it down to its better bare minimums but again i would urge all to look at the that they thomas kentucky reassurance case and also the case just up the road from us here wisconsin the medical society case that just came down that's fresh off the point so i would say that once this court looks at the amendment history it's see this see so all in the in the controversy back and forth you know that the legislature came in and swept the funds when it wasn't in a trust outside the treasury so they fixed it and put it in a trust outside the treasury and they came in and swept again ok well let's talk about their legislative history and i know that the rule is unless it's ambiguous and of course one of the states indicating here that trust doesn't interest in this case all right so i think that's sort of the height the baby you're ready but if you want to build me just for  second i think this is really helpful to me in defining what the intent of the legislature was if you look at the history and we spent a long time pulling out the the the history of this great the to the motion what it does is set up a special fund which would be beyond the purview of the general assembly that's a body and to see for sixty one appendix page fifty seven seven good morning my name is paul burke simons assistant attorney general and i represent the defendants in this case i'd like to start with some of the facts that opposing counsel articulate to the court maybe take a slightly different take on them and the first fact i want to no is that there was always enough money in the motorcycle safety fund to fund all of the classes the entire demand for motorcycle safety classes and in fact the statute the two thousand and four implementation acts that transferred the money to general revenue specifically said do not make this transfer if it will leave the front and underfunded it will leave the account under funded and on able to satisfy the appropriations for that year that's a supplemental appendix x that's the statute is included in a police supplemental appendix and a page six of that supplemental panix you'll see that provision in the statute that says don't deprive the people who want the classes of the classes but to the extent there's excess in the account that money could be should be transferred to general revenue  why well to start that their regulatory fees which is a classic incident of sovereignty is to collect the fee for the service that's provided by the state in this case a motorcycle license or motorcycle registration they're really indistinguishable at their outset from any other fee that maybe a lawyer paid for from lawyer fees because those are mr by the court rather than the legislature but dental fees or fees that environmental fees that  business would have to pay in order to do business in the state regulatory fees are just an incident of sovereignty so when they were paid to the state they became public funds like any other fee a justice card i asked if these were extraordinary or different funds and  know our position is that they're really not that the registration fee for motorcycles is thirty nine dollars i think one quarter of it goes into motorcycle fund a certain amount of it goes into the road fund a certain amount of it goes into other funds administered by the secretary of state it's all part of a single fee that's charged tall motorcyclists who want to register their motorcycle it's just then divvied up into different purposes by the general assembly is it your position any time money is collected by government  their employees and put those in accounts that's available to pay for health insurance coverage i would not say that that money that's paid by the employee to their employer becomes the state's money simply because the employer in that state is is in that case is the state of illinois but certainly our position would be that regulatory fees for that matter taxes are public funds when they're paid after they're paid to the state mr burt you don't believe that the spiritual itself express elements with the presumption in mind that the legislature is generally not intending to create private rights for people when they pass statutes their intent and this presumption abides in all statutes their intent is to articulate the policy of the state till such time as they change their policy so when we look at that at this instrument with with that intent in my and you see sort of the ambiguity in terms of who's the trustee or the broad class of beneficiaries that's been identified everybody in the state with a driver's license would be is the alleged beneficiary class and you presume that the legislature is not trying to create such a private right when when you look at that kind of a broad classic it doesn't suggest that you've overcome that presumption i mean  well i would say that there are other legislative comments that suggest otherwise there are other legislative comments in the record that suggest that what people what what certain legislators at least were trying to do was create a vehicle that could accept federal money in fact m p h see three twenty eight of the record you'll see a statement of the legislative history where one senator gets up and says i i don't know what everyone's talking about here what we're doing here is the federal government has said if we don't pass a helmet law they're going to divert our road far into cycle to cycle safety we're just creating an account that will allow the acceptance of that money other legislators said you know we've heard that private manufacturers would like to donate to this fund where we want to make sure that those private motorcycle may factures or individuals can donate to the fund so we're going to set up an account that will be able to accept those funds so i think the legislative history mr taylor he relied of people who opposed t bill for the most part i mean people who said don't do this year that the sky is going to fall in the legislature will never be able to touch these funds again if you do it that those are the comments on which he was writing those people in fact lost and i think if you read the legislative history as a whole i'm not saying that some people it doesn't change the general sam lease authority over the money the general assembly doesn't lose the right to allocate that money for whatever public purpose they think is most necessary to time simply because they placed it in one account rather than another county they placed it with the treasurer or they placed it with the department of transportation at all times it's the general assembly's parag if they clearly power over the funds so that is a distinct it has it has some meaning for how funds will be used and who's going to administer them and and how the comptroller keeps the books on them but it doesn't have any any particular importance for when you talk about legislative power we talk about legislative power inside or outside the state treasury doesn't matter what matters is public funds  means that the funds are private which is what the ohio court said as well the court said look just because the general assembly moves funds outside the state treasury doesn't mean they're giving up their authority over those funds and i think what the reason they moved the funds outside the state treasury had really more to do with the acceptance of private contributions creating a fund that would not be that would where where people wanted to donate private money into that fund for a specific purpose there which it would go directly to the department of has some has some force right now because when you're looking at the statute you're saying well what did the legislature mean by outside the state treasury well they could have meant we want to create rights for this broad class of beneficiaries or they could have meant we want to create a fund where private people can donate where federal funds can be deposited if they meant the former then and then we have a constitutional question we have the question of justice freiman mentioned before which which is can the nine hundred ninety two general assembly pass a statute that then is going to bind the two thousand and four general assembly to use that money for a specific reason and that constitutional question is the one that the pella court ruled on and rolled that that they could not that the two thousand and four general assembly could modify that statute and use the funds for another purpose the colorado court dress that issue and said the same thing the ohio court reached that same conclusion so in order to avoid a constitutional question and we have to plausible interpretations of a statute which is broad on its face i think if we take the one that doesn't present that counts if we disagree with your agreement in the appellate court analysis is that a simple matter and if the legislature disagrees with us is it as safety fund and moved all the money out or amended the motorcycle rider safety fine i don't think there's their position is they should have been done first but their position that should've been done first but this court has upheld transfers are numerous occasions without first modifying the enabling statute and that's because there's no there's nothing in enabling statute that says don't transfer the funds so the so would have been the two thousand and four general sam we would not have known that that such at such a modification was required before they could transfer money that and in fact to the extent that they they anticipated that in one of these funds there might be some language that was that would be problematic to a fund they did say in the statute not withstanding any laws to the contrary which i think was intended to say look we don't we don't know you know certainly none of these funds say don't stone strands for but if there's anything in them that might be construed as such we want to override that so so you do have a legislative intent to transfer this money  regardless mr taylor indicated that this was an extremely special on using the words trust in outside the state treasury or there are other such funds of structures created that are exists now there are there are dozens of different in substance some of them contain health insurance premiums some of them one of them contains money collected by the state by parents who are low money to their children support to their children and much of the state has  agency that collects them money passes it down to the children and then those funds be square then i use that fund as an example of what a real trust fund would look like you have a defined class of beneficiaries in terms of the children you have a defined waste of money that belongs to a private party and it's only and the states only role is that of the trustee to move that money to that to the private individual at the end that that money i don't i don't believe could be so if they believe it's private money other funds however are similar to this one where they use the language but in a in a in a much more generalized way i'll go does it really come back again to whether these are public or private ones it does and i think you have to look at the substance of the statute rather than the label given to it and that's what this court said in the throat they said look the word trust doesn't isn't dispositive look at the substance of the instrument and i think when you look at the substance of this instrument you see the money comes from public sources comes from registration fees  's allocated for a broad swath of majority of citizens it doesn't look like trust it doesn't look like it's overcoming the presumption that the court that the state was simply trying to pass a policy a beneficial policy when you  indicated that one for one more question you indicated that the purpose of creating this was to allow for grants or gifts into this fun for cycle right or safety training but those funding of those funds came into this trust for those who swear by the legislature no private private forums private donations for specific purpose would be private monies they would not be regulatory fees that are allocated by the general assembly there would be money and there's a statute called the public use trust act and there's some legislative history that indicates one of the sponsors was try to get to copy that to to make this fund similar to the public use trust act and the public use trust act allows agencies to accept private donations for a specific purpose and then use that money solely for that purpose so i think the private money would be protected and that was just you know i want to understand your argument on the legislative debate you mentioned that there were comments made by legislators that indicated  we're not going to get the federal money since we don't have a home and law in the state unless we have a safety program why would matter to mr taylor's argument that then the purpose of this bond was exclusively for safety or promoting safety without transfer without the ability to transfer well i don't think it was simple i would support his argument because what the state legislature set up to handle federal funds the way the mechanism they set up to handle federal funds which would have or strictures and requirements on how they would be spent would not apply to their own plenary thore over state lines i think they would know that because they're setting up a fund that says ok the federal government's got all these caviar some restrictions and we want to make sure we abide by those so we're going to have a fine here but that doesn't that would not i don't think it's a fair inference to say in order to do that we're also going to limit our own authority we're going to stop ourselves from taking registration fees over which we have plenary power and using those for a different public purpose so i don't think that the one matches the other side's i'm posing how something right into cases in particular kentucky the kentucky reinsurance case and the wisconsin case i would just like to address those in the state of kentucky contribute to a state front and if they go bankrupt if they don't have enough money to pay their claims on their and their worker's comp insurance they have access insurance from the state essential the wisconsin statute is very similar it's  medical providers there they say malpractise insurance in a statutorily saqlain it and then they make contributions to the state for access insurance if they're subject to a judgment in excess of the of the end of the malpracti insurance that they purchased they get access insurance from the state fund that they contributed to now those cries a contractual relationships those funds could not be swept wisconsin let the court and the kentucky courts said you can't sweep from those funds and what they did what they reason was when you look at the specificity of those accounts you have you have specific providers specifically named beneficiaries those who provided to the accounts provided money into the funds or the specific beneficiaries the legislature set up a separate body to service the truth as as the fiduciaries of those accounts it didn't just allocate the money like we do registration fees through the treasurer's office to a specific state agency arrangements for insurance coverage that's what those are what we're looking at here is this is not a clause that was a contractual arrangement when they are there are motorcycle registrations for the motorcycle license they pay thirty nine dollars fee otherwise they can try the motorcycle  the state of illinois and once that money goes to the state the state allocates it to a number of different purposes and all and in addition to the purposes for which the thirty nine dollars is allocated the state also through general revenue pays for traffic rights and roads and medical care and a number of other things that motorcyclists like the rest of us use so if the state wants to move some of that thirty nine dollars into general revenue for other purposes that has been held to be well within their authority in the old the only thing that would distinguish this case from the numerous cases in the past where the state has transfer funds and it's been a pal would be the you know the account as a as a trust and that was a statutory designation that was a designation made by a prior general assembly and presenting then the constitutional question which is can that prior general sam bailey do that can they take that money in one thousand nine hundred eighty for evermore were go it what's going to be used for this purpose and when when the ohio court the supreme court or when the colorado supreme court and when the appellate court in this case looked at that question they concluded that they could no w but i would i would really urge the court to take the approach that that the public court took took here which is to construe the statutes so as not to render either one of them invalid and did here is they said well it's implicitly a revokable trust and when the general stanley goes forward and makes its intent clear to shift money from one account to the other they've revoked that trust that would be i think a valid approach it would satisfy the doctrine of constitutional avoidance it would leave the two statutes enforceable and read them and parry materia which i think is is the best approach in the alternative an alternative approach is to look at that  statute the naked ninety two statute say the word trust here was really used exactly and when you look at this statute with the presumption that the legislature is not trying to create best of rights you find it it's not really a era vocal trust that you would find and in the you know private instrument but rather just a statute that articulate really the policy of the state and the priorities of the state at that time there  further questions thank you mr taylor if we follow the legislative footprints those prints leaders to the alter of legislative intent in this case and i want to i had not time to finish a few other things concerning that intent but we do not represent the plaque and i couldn't have said it better and this is a quote let us not cloud the issue any more voted on already has been ok and i would submit to you that's what occurred in this case my very able posing counsel has written a great brief but i would with all due respect suggest  been a masterful job of clouding something that is unbelievably simple when you look at the legislative footprints in this case i will go on finally the cycle ri safety training phone was created because of a voluntary request by the motorcyclists themselves tough on this very program representative klim said that and volume to see the full fifty two predicts page forty eight i think that it is clear that when you look at the way we started out and back in the eighty's it was the beginning of this kind of i would say this to you that taking is a taking ok and just because you bay allow a car to be borrowed by someone to use the appellate court's analogy it doesn't allow that person to keep it so exactly pinpoint that depends on how many people sign up that's not a that's a problem with government has us trying to figure out an estimate the best way to do that in a fair way of doing it is the legislature can go in and simply adjust the amount that it's collected and if they need more and it said we have more and more people coming in to be trained in this program then we have to collect more from the motorcyclist and that we're that would occur that's what we signed up for that's to be encouraged that whole arrangement that's a good thing in all states it seems to me to give this tool to not only citizens of the state but the legislators you know we can apply that many other instances other than just a cycle rider safety training funds i mean you know your imagination can kind of a region down that path and this one it's a very holy one to me in my judgment opposing counsel is doing a very good job in taking a look at these phones and saying well phones are phones and basically  and i work real hard to try to figure out how to make this elegantly simple in my own brain before i could submit it to you folks and i put in a chart not a reply brief plain water phone and safety bodum boating accident and i comparer side by side in the brief but each for number one the two phones that are cycle out of the state saying that i know it's a same old same old the same as it's a state money making grab it and they can use it whatever they want those were created a special phones only they were trust phones the cycle rider safety training phone was created as a trust and i've already bored you to death running through the eighty to the ninety two amendments in the controversies the problems we had there and all the legislative history of the battle i mean if there's anything it's been fought in the air or certainly this cycle rider training fund has been but they didn't debated it it's because there are a lot of people in this state a lot of motorcyclist who feel very intent and the beneficiaries are a motorcyclist who want to make sure their sons grandsons are granddaughters and daughters and themselves can go back and make sure they're up to speed in today's very complicated fast paced world the interstates etc the second thing on the clean water fun they were placed inside the our phones were placed outside the remember i i always like to look up words i still have my own college dictionary from one nine hundred sixty nine webster's college dictionary seventh edition i looked up outside just to make sure i i pretty sure ninety one men but it means it was better than i thought to be very frank with you always were of such when i go to the dictionary outside the limits of the treasury just folks how  either one of ours does it means a resident sixteen and over with a driver's license and one thing cycle training that virtually element they agreed in a brit were all about and we signed on for that program nice folks are here for their health i mean they're here is bone teeters to make sure things come about in the state it's a better deal this is a good partnership that we have with the state of illinois we'd like to continue with that and that's what the legi we came down and said hey we need to do this correctly we need to make sure that these funds are used for going to pay the bill for this and we do ok we do we do all this settlement just like up in wisconsin  those monies all right that statute carefully notes that the money is to be placed outside my favorite word for the week the state treasury so  say that this case strikes at the very heart of our property rights we can't just say well there's a little money left over here what school less school take that that strikes was to do with the difference is a justice freiman is that the deal is private money it is private money for the specific purpose of that trust for the purpose it's set forth in that legislation and the appropriate there is to just put me out that's collected the amount of the couldn't be adjusted but sweet well that would be taking that would be taking money that's like getting no change back is like a mcdonald's and put down the twenty in the bills fifteen dollars in them mcdonald's guy says ok nice meal and then give your change back that's the analogy very elementary i realize but that's a analogy i would get it is not mcdonald's money it is not the legislators money they declared fat that is their intention here into a while a sweep basically strikes at the very premise of the rule of law in this country and that is to say crow same to element of contract agreement and taking the property so sure i would say it's convenient as i've said before desperate people do desperate things so i understand there's a need to look at never cracking a crevice in this state for funds but once we start violating the very basis of our being we have just stepped backwards in this country and i think in this instance if you could pick one but stands above all the rest of them for all the obvious reasons i've suggested and for all the good reason it exists it's this one and a taking here means they can take further in my judgment when we turn to funds be at risk would insurance deductions be at risk compensation premiums and funds be at risk i mean the whole list would come to the fore i e faith the legislature wanted to be taken at their word ok and that in this you may conclude thank you justice in this instance and to all your question i understand the the ease with which that would provide some relief today and if i were a legislator you know we have to look at all those but in this case with this fund outside the treasury interest paid for by the home behalf of motorcyclist that should be honored i submit to you if we had the legislature here today from back clear they'd all say rod taylor your right is working thank you very much thank you case number one one zero