Pension Suit Update: Class Certification Hearing on June 26
Law is more than just practiced
courtesy in litigious warfare; it’s also cautiousness and prudence in the
extreme. In short, don’t expect the
lawsuit by We Are One and other organizations to move in any way except slowly
and circumspectly. But also know the
wheel is slowly moving forward.
On Thursday, June 26th,
a gathering of legal representatives and plaintiff groups, and the defendants
(Attorney General’s Office) in the “pension suit” will deliver arguments, share
expert witnesses, and present historical position statements to Judge Belz in
Sangamon County, Illinois, at 1:30 p.m. All
of this falls under an early but necessary step in the process toward final
litigation, one called “class distinction,” or “class certification.”
Even though we
pensioners may consider the reprehensible diversion
or half-century lack of payments by the General Assembly a criminal refusal of their obligations to a contractual promise, a
class action suit does not fall into a category synonymous with criminal
law. Rather, it is common law, considered an area grounded in precedent, even when it
touches upon a Constitutional matter at the State level. This, by the way, is why my friend and
blogger Glen Brown is so accurately repetitive in his citations of precedents
in earlier attacks on the substance and/or meaning of Article XIII, Section 5
of our Illinois Constitution:
Membership in any pension or retirement system of the
State, any unit of local government or school district, or any agency or
instrumentality therof, shall be an enforceable contractual relationship, the
benefits of which shall not be diminished or impaired.
See Glen Brown's Listed Precedents in Illinois Law:
See Glen Brown's Listed Precedents in Illinois Law:
Class action suits have
been around since as early as the 1100’s, when villagers could choose three or
four representatives to file a single complaint against the Lord of the Manor
in the name of all his feudal subjects.
This aspect of common law followed our earliest descendants to America,
and the judiciary (not a trial jury) was compelled to determine litigious
outcome in such cases based upon either precedent or their own good sense of
moral and ethical correctness (that is, if no precedent could be determined).
In the mid 1800’s, the
need to codify such laws resulted in what would eventually become rules of
civil procedure in such actions: determining who might or might not be members
of a representative group seeking compensation for injury or an alleviation of
unfair practices on a specific group. The
problematic issue of who was represented by such actions remained a legal
Gordian knot for the courts and especially the judiciary. Eminent Supreme Court Justice Joseph Story (1811-1845)
was insistently
concerned about the power of a class action’s final outcome suit to bind those who were originally not a
part of the litigation nor an original party to the complaint.
Justice Joseph Story |
By the mid to early
1900’s the Supreme Court adopted the Rules of Civil Procedures, a careful
outline of acceptable procedures and the established differences between common
and criminal law courts. On the other
hand, questions of absent parties were not entirely settled.
Example: You perhaps
have received opportunity to become part of a class action suit via letter or
on the Internet lately. One imperative
in such litigation is the necessity to identify not only the class of
individuals seeking compensation or permanent injunction, but also to inform
those who may seek to be or not to be a part of the action. Providing individuals with the choice to
become part of the process is a necessary
and lengthy function of due process in the journey of a class action suit from
start until final resolution. Indeed, we
can all expect that June 26th is just the first pass in an epic duel of
courtroom thrusts that will lead one of these days to an answer about
constitutionality or the police powers of the state as being victorious.
In 1966, further
revisions of the code provided for a revision (Rule 23) that offered some long
needed alterations; although it did not and has not necessarily made anything
less complicated in class actions. During the “discovery” section early on in this process, the exact size and
nature and population of the class is called certification, and this is what
will begin on this Thursday.
From Rule 23:
Prerequisites: One or more members of a class may sue
or be sued as representative parties on behalf of all members only if:
1)
the class is so numerous that joinder of all of its
members is impracticable;
2)
there are questions of law or fact common to the
class;
3)
the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and
4)
the representative parties will fairly and adequately
protect the interests of the class.
Some people may choose
to go it alone. You might remember the
result of the tobacco industry’s fight against the representative class action
for smoking borne illnesses. What began
as federal class actions against the tobacco industry in the 1950’s gained real
traction when class actions moved to the state levels in the 90’s. Remember the man with inoperable lung cancer
in California who received a $50 plus million settlement from Philip
Morris? In Florida, on the other hand, individual
suits were thrown out of court – as those partaking in smoking cigarettes were presumed by the judiciary to have had knowledge of the medical danger to do so.
Of course, the
plaintiffs (Quinn, Topinka, et.al.) in the Pension Suit defended by the
Attorney General of Illinois, have already made clear their disavowal of any
harm, any illegality, any breaking of precedent in their adoption of SB1 or invocation
of police powers. Indeed, they will also
argue against the representation of individuals per groups of people. They may argue that an individual does not
represent all retired teachers; another individual does not truly represent all
current and future actives; one COLA does not truly or accurately represent all
other people with dissimilar COLA’s.
We can expect to be later
outraged by arguments from Attorney General Lisa Madigan’s representatives that
police powers trump any precedents in the future, but starting on June 26th
we’ll need to carefully muddle through class distinctions and representation before
we get to that legal flash point.
Meanwhile, Judge Belz
has an equally careful and painstakingly prudent path to tread.
To be continued…
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