Tuesday, November 13, 2012

Reprise - Giving Thanks

Henry Green and Helen Kinney
Two Stalwart Delegates to the 1970 Illinois Constitutional Convention

We need to recall and appreciate that Illinois is one of only 10 states in the nation that has a pension protection clause ratified in its state constitution.   The 40 carefully crafted words created for the 1970 Constitutional Convention have thus far prevented the wholesale unraveling of our pensions under the guise of "pension reform" or "pension stabilization."  We need to give thanks and remembrance during this time of year to two indispensable and stalwart persons who led the way for the protection of hundreds of thousands of current public-sector workers.  

Without Henry Green’s and Helen Kinney’s collective foresight, wisdom and prescience of likely future political irresolution, the members of the five retirement systems in Illinois could already have suffered the fate of other public employees in some other states across the United States (Minnesota, Colorado, Rhode Island - to name a few).  Both individuals were delegates to the Constitutional Convention of 1970, and Mr. Green was the primary sponsor of Article XIII, Section 5, “the Pension Clause,” which states that “membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”  Ms. Kinney was the secondary voice behind this attempt to insert into a constitution, unchanged for one hundred years, a new guarantee of retirement security for those who toiled for the state. 

Prior to their efforts, pension rights were dependent upon whether one’s pension plan was compulsory or optional.  In the former, a person signed on to the retirement program offered at that point in time by the company, state, or organization.  In that sense, according to one judicial review, “pension benefits in mandatory plans [were] mere gratuities… springing from the appreciation and graciousness of the sovereign” (Handbook of Illinois Pension Case Law: Illinois Committee of Government Finance and Accounting, January 2008).   In other words, as mere statutes, compulsory pensions could be amended, repealed or ignored by an act of the legislature in Illinois.  On the other hand, later rulings by the Illinois Supreme Court found that when a public pension was optional, the employee’s right to receive later benefits was a contractual certitude. 

After 1970, and the adoption by the people of the State of Illinois of the new Constitution and Article XIII, Section 5, the issue of a reduction in pension payment due to a disability was brought before the courts (Kraus vs. Board of Trustees 1979).  The court, led by Justice Stamos, relied heavily upon the transcripts and comments of delegates Henry Green and Helen Kinney in order to discern their intent in the original drafting of the “Pension Clause.” 

According to conversations and notes by Henry Green, “The underlying purpose of the pension clause was ‘to provide public employees with a basic protection against abolishing their rights completely or changing the terms of their rights by reducing their benefits after they had already embarked upon employment’”  (The Illinois State Pension Crisis: Secure Retirement for Public Servants at Risk). Green had admitted that he “promoted the pension promise, which was based on a 1938 amendment to the New York State Constitution because of concerns raised by university employees who had lost ‘faith in the ability of state and local governments to make benefit payments.’

Helen Kinney, later to become a distinguished judge in DuPage County, was more direct: “Benefits not being diminished really refers to this situation: If a police officer accepted employment under a provision where he was entitled to retire at two-thirds of his salary after twenty years of service, that could not subsequently be changed to say he was entitled to only one-third of his salary after thirty years of service, or perhaps entitled to nothing.  That is the thrust of the word ‘diminished.’…It is simply to give them a basic protection against abolishing their rights completely or changing the terms of their rights after they have embarked upon the employment – to lessen them” (IEA Fact Sheet: Reducing Pension Benefits for Current Educators, 15 Feb 2011).

According to Eric M. Madiar, Chief Legal Counsel to Illinois Senate President John Cullerton and Parliamentarian of the Illinois Senate: “The Pension Clause’s plain language reveals that an employee’s contractual rights exist and are legally secured at the time of membership, and those rights cannot be unilaterally reduced or voided thereafter. Nowhere does the Pension Clause limit protection, as Sidley claims, to only ‘benefits that were previously earned.’ To reach Sidley’s conclusion, the provision would need to add the word ‘earned’ or ‘accrued’ before the word ‘benefits’ as is the case with the Hawaii and Michigan Constitutions. Distilled to its essence, Sidley’s construction ignores the Pension Clause’s plain language, defies common sense and logic, and adds limitations where none exist” (Is Welching on Public Pension Promises an Option for Illinois? An Analysis of Article XIII, Section 5 of the Illinois Constitution).

Finally, the Civic Committee of the Commercial Club of Chicago’s legal advisors and members (Sidley Austin) argue that two voices of the many delegates involved in the drafting of the Illinois Constitution do not speak for the entire body of delegates.  We might ask what about the endorsement of both Republican and Democratic parties in 1970?  What about the more than one million voters who ratified it? 

“While welching on its pension obligations is not an option for Illinois, legitimate contract principles provide a solution to mitigate this crisis. The Pension Clause will become a ‘suicide pact’ only if individual citizens are purely self-interested and admit no obligation to the common good. By adopting the Clause, the drafters and voters weighed, measured, and found wanting the current claim that it is unfair to pay these pension obligations. Public employees have paid their required fair share of pension costs; it is incumbent on the State to meet its end of the bargain” (Madiar).

As the year turns once again, now 43 years later, all public employees in the State of Illinois need to pause and give thanks to these two friends of labor, advocates of a legal promise, and sentinels of workers’ respect and rights.  Thank you, Henry Green and Helen Kinney.

Henry Green – Courtesy of the archivists at Parkland College, of which Henry Green was a founder.
Helen Kinney – Courtesy of Women’s Bar Association of Illinois.  She was the first woman to be appointed to the bench in DuPage County.   


  1. Let us all work together to have our names on the list of those who will be thanked by teachers, retirees and their families in 2054.
    Ken Previti

  2. We should be able to assume most legislators understand the concept of justice and that lawfulness demands that people keep their covenants with one another. No justice is accomplished when subordinating or diminishing public employees’ rights on account of decades of legislators’ negligence, irresponsibility and corruption.

    To possess a right to a promised benefit, such as a pension, is to assert a legitimate claim with all Illinois legislators to protect that right. There are no rights without obligations. They are mutually dependent. Fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents.

    The significant issue of today’s proposed so-called “pension reform” is the relationship between public employees’ rights to constitutionally-guaranteed, earned benefits and the legislators’ obligation to safeguard those promises.

    An unconscionable constitutional challenge of those rights and benefits generates a serious threat to their secure sense of worth as citizens and creates the unfair possibility for an economic disadvantage for a particular group of people and their families. This can never be legally or morally justified.

    All citizens of the State of Illinois have legal justification for their rights and benefits. The foundation of their rights and benefits is the State and U.S. Constitutions that directly support any claims against them. Moreover, State contracts are protected by the federal government. Understandably, the 5th and 14th amendments of the United States Constitution protect due process of law.

    It’s evident the policymakers of Illinois are attempting to break their contracts with their employees by calling it “pension reform.”

    For an analysis: