Wednesday, May 14, 2014

Restraining Order - Not Quite Safe Yet, But a Good Start.

On Restraining Orders & Preliminary Injunctions

A note received from active teacher Todd Mertz in regards to today’s ruling by Justice Belz and additions to an earlier post.

Friends and Colleagues

Great news today--District Judge John Belz granted a restraining order and injunction on the pension reform bill (SB1) this afternoon. 

As a result, no retirement benefits will be altered or diminished until the judge issues a final ruling on the law.

Michael Carrigan, president of the Illinois AFL-CIO said, "This is an important first step in our efforts to overturn this unfair, unconstitutional law and to protect retirement security for working and retired families.  We are pleased the court prudently chose to halt implementation of these sweeping changes, which have caused so much fear and uncertainty and are likely to be overturned."

There is no date set for the actual lawsuit.

According to the Illinois Association of School Administrators, "In granting the stay, Judge Belz ruled that the plaintiffs had demonstrated that allowing the law to go into effect June 1, while the court case was still pending, would cause irreparable harm to retirees and those contemplating retirement despite arguments to the contrary by the Attorney General's Office, which is representing the state in the case."

According to the Illinois Retired Teachers Association, "This action is a very good sign for the plaintiffs."


--Todd Mertz 

Noun – an injunction, simply, is an order (or a writ) issued by the court that demands an individual or person(s) to act -  or restrains an individual or person(s) from acting.

For an historical example, recall the attempted desegregation in 1957 of the Little Rock Central High School in Arkansas.  Segregationist groups were able to convince a local chancellor/judge to issue an injunction against the admission of non-white students to the school in the coming fall based on their “concerns” for potential violence. 

Another injunction, delivered by Federal Judge Davies nullified the earlier writ with a command that forced the school to move forward with the planned integration and removed the National Guard brought in ostensibly to uphold law and order. 

Warning:  Injunctions and Restraining Orders can be challenged, and it is not impossible nor is it unlikely that an Illinois Attorney General would refrain from arguing for a reversal of Judge Belz’s decision of today. 

Injunctions are born of other issues and conflicts, and are not a matter of legal right(s).  In fact, a request for an injunction can as easily be denied as approved.  The facts in each case determine whether an injunction will be issued, and the potential details for consideration (no puns intended) in the case of a not-so-distant pension bill cutting benefits will provide many. (Written before passage of SB1 in Dec. 2013)

There will of course be the central argument provided by Helen Kinney and Henry Green (thank you) in the 1970 Illinois Constitutional Convention: Article XIII, Section 5.

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.

While the General Assembly has acted with impunity in the cutting of benefits to the future public workers in Illinois, they had yet to pass a bill curtailing the benefits of active workers and current retirees; that is, until Black Tuesday, December 3, 2013.  Indeed, much of the concern raised by those who practice law in the General Assembly has been, as Representative Lou Lang tried to remind the Chicago Tribune, “whether or not it is constitutional.”  Whether it’s legal.  The Tribune is not concerned with legality – or morality.  Evidently, in the end, Representative Lang conveniently disremembered his earlier stance on constitutional legality (Dec.4, 2014). 

SB1, which emerged from the “new” summer pension working-group was a reconstruction of Madigan’s earlier benefit-cutting bill of 2012 and a denial of Cullerton’s union-backed bill SB2404, and we all knew any changes in the wording to SB2404 would provide an immediate refusal to endorse by the unions, and subsequent passage of SB1 would likely produce a request for preliminary injunction.  Remember, however, even union-backed SB2404 would have faced a legal reaction by the Illinois Retired Teachers Association, and such a response (as it has been for SB1) might start as described below.  

Because of the enormity of impact in the passage of such a bill –one that will affect hundreds of thousands of Illinois families and millions of citizens – all the unions would likely seek a restraining order immediately.  “A Restraining Order is granted to preserve the status quo of the focus of controversy until the hearing on an application for a temporary injunction.  A Temporary Restraining Order is an extraordinary remedy of short duration that is issued to prevent unnecessary and irreparable injury”

The Restraining Order, even if Temporary, suspends further proceedings until a determination whether an injunction is permissible can be filed with the court.  According to a release by the IRTA this afternoon, “On May 14, 2014, Judge Belz granted the motion for a temporary restraining order.  Therefore the pension litigation has been stayed in its entirety until any future court order.  This action is a very good sign for the plaintiffs.” (May 14, 2014).

During that interim, union officials may seek a Permanent Injunction, which would act much like a Restraining Order, except that such a writ would stop all proceeding(s) until legal determinations could be made. Again, remember that the Attorney General could petition for a hearing to disprove “irreparable” harm.  In short, this is just the beginning of a long and involved series of skirmishes before any real and summative determinations may be made. 

One argument at a time, please. 
While today’s judicial response stays the effect of SB1 by June 1, 2014, it does not necessarily mean the halt will remain through January 2015, when COLA’s and other aspects of the law’s impact will be first administered.  Much may happen legally between now and then.

But a permanent injunction, if the coalition were to achieve one, freezes or holds the conflicting matter in its present state to preserve the existing condition and  “ensures the ability of the court to render a meaningful decision and serves to prevent a change of circumstances that would hamper or block the granting of proper relief following a trial on the merits of the case”
(  Still not permanent, but closer. 

Then, it’s the court’s turn to consider the legality or constitutionality of the proposed bill.  But that could take considerable longer…in fact, it will. 


  1. “[However, any] attempt to denigrate the validity of decades of judicial precedents about the binding nature of legislation establishing pension commitments to government employees and to motivate state courts to overturn long-settled premises about these commitments would impose its own, unjustifiable costs. The states and their instrumentalities have promised pension benefits to their employees; those employees have relied on those long-standing promises; and as a result the citizens of the states have benefited from the services provided by those employees. [In short,] there is no sound public policy reason to conclude that these promises – based on the reasonable expectations of the contracting parties – should not be fully protected by the laws prohibiting or limiting the impairment of contracts” (Greenfield, Douglas L., Lahne, Susan G. (2012). How Much Can States Change Existing Retirement Policy? In Defense of State Judicial Decisions Protecting Public Employees’ Pensions. National Council of State Legislatures Legislative Summit).

    “[The Pension Protection Clause was approved by the Constitutional Convention and ratified by the people of Illinois. Over the years, the Illinois Supreme Court has had several occasions to interpret the Pension Protection Clause. The Illinois Supreme Court’s decisions have been consistent: ‘[T]his court has consistently invalidated amendments to the Pension Code where the result is to diminish benefits.’ McNamee v. State, 173 Ill. 2d 433, 445 (1996). That is because, under the Pension Protection Clause, the ‘contractual relationship’ between a retirement system member and the State of Illinois is ‘governed by the actual terms of the Pension Code at the time the employee becomes a member of the pension system.’ McNamee, 173 Ill. 2d at 439.

    “[In a strikingly similar context, the Illinois Supreme Court also has warned: ‘No principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem.’” (Jorgensen v. Blagojevich, 211 Ill. 2d 286, 316 (2004) (from the 12-page legal document recently filed by the law firm of Tabet, DiVito & Rothstein on behalf of the plaintiffs named from the IRTA and IASA)].

  2. I will continue to believe that to possess a right to a promised deferred compensation, 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.

    All citizens have rights that must be protected. When legislators swear an oath to uphold the state and federal constitutions (Article XIII, Section 3 of the Constitution of the State of Illinois), then citizens of Illinois and the United States have also acquired the right to expect that they will uphold that pledge. This is also a matter of important moral concern for all citizens of a state, for all legal claims will be validated by a moral framework since the concept of justice is grounded in ethics.

    And like all other citizens, public employees’ legal rights are derived from past political constitutions, legislative enactments, and case law. All citizens of Illinois have a fundamental right to oppose a General Assembly that imposes a violation of their constitutional rights and benefits… “Any statute which [is] imposed upon [public employees]… in order to redistribute resources and thus benefit some persons at the expense of others [extends] beyond the implicit boundaries of legislative authority. Such laws…violate natural rights of property and contract, rights lying at the very core of the private domain” (Laurence H. Tribe, American Constitutional Law). Current pension reform is without legal and moral justification; furthermore, to call it "pension reform" when it is "breaking a contract" is a fabrication.

  3. Forgive me for calling attention to the 800 pound gorilla in the room.
    Illinois Attorney General Lisa Madigan is Speaker of the House Mike Madigan's daughter. Both also share financial interests (direct and/or indirect) in the tax-free Madigan Foundation. SBI is Mike's bill.
    The politically generated attempt at pension theft is all about power and money. Mike and Lisa Madigan have power. They have a boat-load of lawyers on the state payroll who specialize in doing what they are hired to do.
    We have the money they want - our pensions.
    I am not optimistic in the face of nepotism and corruption.