Considering Consideration: and other legal implications
Preparing for a court battle means anticipating just where
your opponent will argue the case they present before a judge as well as
putting forth your own best case. Of
course, all that time, you must remember they are working to blunt the
reasoning you think best. A good legal
team knows early on that it’s always 99.9% perspiration and .1%
inspiration. So it will likely be with
the pension court case in Illinois.
Remember also, ambiguity is the lifeblood of these suits. The sentence “Starving lions can be
dangerous” comes to mind when pondering the implications of an upcoming suit
over the recently enacted “pension reform-theft” in Illinois. Does the previous sentence mean possibly injurious to the poor lions? Or certainly
fatal to anyone starving them?
Article XIII, Section 5. Illinois Pension Clause: 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.
Even Article XIII, Section 5, which appears transparently
clear to a retired pensioner like myself, will be broken like shards into a
kaleidoscope of intended meanings by the various lawyers trying to present
their unique perspectives/interpretations….and of course win. Parsing the meanings of the clause will be an
integral part of the arguments against and for the bill Governor Quinn signed
on Thursday.
Does “membership” mean active workers or only those who have
already retired? Does an “enforceable
contractual relationship” allow for adjustments to be made given an argument of
statewide fiscal crisis? Or a case that
changes are necessary to keep the system from imploding? Does “diminish or impair” prevent any
perceived negative alteration to a benefit expectation after employment,
retirement, by collective bargaining unit or by individual?
This litigation may take far more time than anyone might
suppose. But, we can expect the court
and its competing lawyers to debate carefully the concept of consideration in contractual law when
it comes to SB1 and its numerous provisions for current and future workers as
well as retirees. (For a review of those
changes, please see Glen Brown’s blogs(teacher/poet/musician glen brown).
Consideration: (n) in
law, something of value given by both parties to a contract that induces them
to enter into the agreement to exchange mutual performances (West’s
Encyclopedia of American Law).
According to the Tribune, Speaker Madigan ticked off several
reasons why he feels the bill (now law) meets the question of consideration:
“Workers would contribute 1 percentage point less toward their retirement, the
state would kick in more money to better fund pensions, the retirement system
could go to the Illinois Supreme Court if the lawmakers failed to make required
payments, and some workers could choose a 401(k)-style option” (5 December 2013). In other words, the Speaker feels that any
offer of improvement (on his part and from his perspective) is enough to
satisfy consideration.
Senate Leader Cullerton and his legal counsel Eric Madiar
may not be so sure. And their concern
may be justified.
In the Speaker’s analysis, he proposes the court accept what
should be deemed a unilateral contract, one lacking the necessary intent
between both parties necessary to reach what most courts deem a suitable level
of consideration. In simple (English
teacher) language, the Speaker’s law acts impossibly for both sides at once –
both the General Assembly and the unions – by delivering and exchanging some
increased benefits and some impairments as trade offs, but none of it with any
agreement or promise by the other party in exchange.
For example, instead of exchanging gifts valued at $5 during
the office party this year, as we have all agreed to every year, Boss Mike
informs you he doesn’t want your present worth $5, but instead is going to give
you a picture of himself (he paid nearly $10 for it) and he’s going to take ten
minutes out of your lunch break. That’s a
unilateral offer of contract. Once you
perform your part of the agreement(?), placing his picture on your wall and
skipping your dessert, you’ve have achieved consideration under the law.
Are you starting to comprehend the bristling response of the
IRTA and WeAreOne?
On the other hand, a bi-lateral contract, like those
historically binding benefits and contributions for Illinois public sector
workers, are agreements binding both parties the minute the parties exchanged
promises, as each promise was deemed sufficient or of valuable consideration in
itself.
For decades after the drafting and adopting of Article XIII,
Section 5 in the 1970 Illinois Constitution, consideration has been considered
“valuable.” That is, a thing of value
parted with, or a new obligation assumed, at the time of obtaining the thing,
which is substantial compensation for that which is obtained thereby. It is also simply called ‘value’” (Black’s
Law Dictionary).
Exchanges were agreed to and settled on for the Early Retirement
Option, death benefits, and even the COLA; but those were all bilateral
contracts consisting of mutual consent in the establishment of a valuable
consideration(s).
It appears to me, SB1
does not meet the acceptable requirements for consideration.
No comments:
Post a Comment