Tuesday, June 24, 2014

Pension Suit Update: Next Hearing June 26th Thursday

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:

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
Justice Joseph Story
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. 

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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