Affirmative Defense: Motion to Strike AG Madigan's Police Powers Argument

Pension Vocabulary: Affirmative Defense

On August 21^st, legal counsel representing ISEA, RSEA, Heaton & Harrison filed a joint motion in Sangamon County for a judgment on the pleadings as to the affirmative defense, or in the alternative, to strike the affirmative defense.

An affirmative defense, in this case the summoning of “reserved sovereign powers” by the Attorney General Lisa Madigan is a defense in which “the defendant(s) introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant(s) committed the alleged acts” (http://www.law.cornell.edu/wex/affirmative_defense).

In other words, the defendants’ behavior may be wrong or even illegal, but their conduct is mitigated by the circumstances that supposedly required their action.   In criminal hearings, think self-defense or insanity.

In the civil case of SB1 (now Public Act 98-599), the affirmative defense put forth by AG Madigan is necessity. 

What would follow includes “discovery,” but the recent Kanerva decision has prompted a legal question and a motion by the plaintiffs:

“In an apparent attempt to cloud the absolute protection that the Pension Protection Clause affords members of the State’s pension and retirement systems, the defendants insist on engaging in extensive and expensive fact and expert discovery concerning the fiscal condition of the State.  But Kanerva confirms that whatever facts and opinions the defendants might be able to muster could not, as a matter of law, amount to any justification for the Act’s unconstitutional diminishment and impairment of pension benefits” (p.2/14 Case No. 2014-MR-1). 

Indeed, if Kanerva is indeed precedent, albeit very contemporary, is it worth the court’s time and the State’s extreme costs to entertain AG Madigan’s argument at all?

A motion for judgment on the pleadings is a move to dispose of the defective pleading (the AG Madigan’s sovereign powers position) on the basis that “it fails as a matter of law even if taken as true, the same approach as with a motion to dismiss under Federal Rule 12(b)” [Strickland & Baldwin (mylegalwriting.com)]  Such a motion, if considered favorably, blemishes the affirmative defense at the onset, before scrutinizing reams of facts and information harvested for the discovery process.   Such prejudice may be applied to the pleadings in total or in select portions. 

The harsher “alternative,” “to strike the affirmative defense,” is a motion before the court to delete insufficient defenses or immaterial, redundant, impertinent, or scandalous statements from, in this case, the defendants’ pleading.  “This can either be oral or written. A motion to strike is also used to request elimination of inadmissible evidence to be deleted from the record” (http://definitions.uslegal.com/m/motion-to-strike/).

The court of Sangamon County, then, is being asked to consider arguments presented in the 14-page motion by ISEA, RSEA, et. al., and proceed by either characterizing the defendant’s affirmative argument of “reserved sovereign powers as legally unsupported in the first motion or inadmissible in the second.

In case you have not read the document, what follows are highlights.  Still, I recommend your attention to the entire motion will be very worth your time.

After a review of case law in civil matters allowing for motions for judgment on the pleadings, specifically in cases where an affirmative defense is employed, the joint motion presents arguments:

The absolute nature of Illinois’ Pension Protection Clause after the Kanerva decision.

“The supreme court held that the State’s provision of health insurance premium subsidies fell within the ambit of the Pension Protection Clause because they are benefits of membership in State retirement systems” (p.3/14 Case No. 2014-MR-1). 

“’We may not rewrite the pension protection clause to include restrictions and limitations that the drafters did not express and the citizens of Illinois did not approve,’ the court held (in Kanerva)  That holding defeats the affirmative defense in this case as a matter of law” (p.4/14 Case No. 2014-MR-1).

Now I see Klonsky's connection!

“No court may read a limitation into the Pension Protection Clause that is not expressly stated in it, and its expansive language contains no exception for any exercise of the State’s alleged “reserved sovereign powers’”(p.5/14 Case No. 2014-MR-1).  In fact, the joint motion presents an additional reason in that the same drafters were careful to include “state powers” in the preamble of §22 of Article I in the Illinois Constitution to directly limit the right of an individual to bear arms.  But not so in the

Pension Protection Clause.

The Kanerva decisions’ comfortable legal position in the lineage of earlier precedents protecting pensions and denying the invoking of “reserved sovereign powers” to trump provisions within the Illinois Constitution,

“As early as 1839, the Illinois Supreme Court explained, ‘…a state constitution is a limitation upon the powers of the legislature…or expressly denied to it by the constitution’ Field v. People, 3III 79, 95 (1839)’” (p.5/14).

“In fact, the usual deference to nay legislative assessment of the reasonableness and necessity of an impairment is not even appropriate when a State’s financial self-interest is at stake…  That is to say, the need for money is simply no excuse for affecting a State’s financial obligations … The inability to meet what one provision of the constitution mandates provides no excuse to violate another” – Justice Freeman (p.7/14).

“As held in Kanerva, neither the defendants n or the Court may ‘construe article XIII, section 5, in a way that the plain language of the provision does not support’ or ‘rewrite the pension protection clause to include restrictions and limitations that the drafters did not express and the citizens of Illinois did not approve’” Kanerva, 2014 IL115811, para 41” (p. 9/14).

 An examination of the Kanerva decision as reinforcing the work and record of the drafters of the Illinois Constitution in 1970.

(The Pension Protection Clause) “’first mandates a contractual relationship between the employer and the employee, and secondly, it mandates the General Assembly not to impair or diminish these rights’” – Principle Sponsor Delegate Henry Green (p.10/14)

“…delegates statements were made with an understanding that, ‘in the past appropriations to cover past pension obligations had “been made a political football” and “the party in power would just use the amount of state contribution to help balance budgets,” jeopardizing the resources available to meet the State’s obligations to participants in its pension systems in the future’”(p.11/14).

The Kanerva decision’s summative precedent that the Pension Protection Clause is absolute.   

Because there exist no limitations, expressed or alluded to, within the Illinois Constitution, the Pension Protection Clause’s plan and expansive language, the history of precedent in this matter, the expressed meaning in records of delegates to the 1970 convention, and the adoption of the Illinois Constitution by its people – and “in Kanerva…the pension benefits of State retirement system members are constitutionally insulated from diminishment or impairment.  The affirmative defense therefore fails as a matter of law” (p/13/14).

The usual response time for motions for judgment of pleadings is around 21 days, although such a ruling could come earlier.  If you’d like to peruse the entire document, please click the link below. 

https://www.ift-aft.org/docs/default-source/documents/joint-motion-for-judgment-strike-affirmative-defense-(8-21-14)-without-exhibit-a.pdf?status=Temp&sfvrsn=0.012017007218673825