Judge Belz: Lisa Madigan’s “cross-motion for summary judgment is
denied WITH PREJUDICE…”
When the Illinois Supreme Court hears Attorney General Lisa
Madigan’s appeal of Sangamon County Judge Belz’s decision, the justices will be
reviewing earlier court decisions as well as attending to her reconstructed
arguments. According to a spokesperson
interviewed a few days ago on WBBM radio, the Attorney General does not plan to
change her argument defending PA98-599.
In fact, she
cannot. The appeal to the Supreme Court
in Illinois is an appeal of the decision presented by Judge Belz, not a
“do-over.”
Moreover, that decision includes the District Court’s order: “The Plaintiffs’ motions are
granted. “The defendants cross-motion
for summary judgment is denied, with
prejudice, because the Court finds there is no police power or reserved
sovereign power to diminish pension benefits.”
You might remember that in Kanerva v. Weems, Justice Burke’s single dissent included
her expressed concerns that the inclusion of health care as an inherent and
additional pension benefits were beyond the scope and definition of “pension,”
which was to be considered a fixed fiscal sum specified at the moment of
employment. In her opinion, the acceptance
by the six other Illinois Justices to additional arrangements or benefits made
during the life of one’s contract, including healthcare, were equivalent to “making something out of whole cloth.”
Judge Belz’s specific selection of the term “with prejudice” regarding the
affirmative defense police-power argument engaged by Attorney General Madigan
now likewise becomes considered unsupported - a “making something out of whole
cloth.” In short, fabricated.
What is a judgment “with prejudice?”
“A court may also
enter judgment with prejudice, however. This signifies that the court
has made an adjudication on the merits of the case and a final disposition,
barring the plaintiff from bringing a new lawsuit based on the same subject. If
a new lawsuit is brought, a defendant can properly invoke res judicata as a defense, because a court will not relitigate a
matter that has been fully heard before.
Often a court will enter a judgment with prejudice if the plaintiff has shown
bad faith, misled the court, or persisted in filing frivolous lawsuits.
(http://legal-dictionary.thefreedictionary.com/without+prejudice)
The question of
constitutionality may propel the pension lawsuit to the Illinois Supreme Court,
but Lisa Madigan’s appeal will arrive tainted and sullied by the term “with
prejudice,” and the Illinois Supreme Court Justices are compelled to take
notice.
In addition, the latest written decision by Judge Belz will
act as a clear and lucid reminder of past precedent(s), as well as his close scrutiny
of the faulty reasoning by the Attorney General’s legal team.
Citing the recent decisions by the ISC in Kanerva v Weems,
Judge Belz astutely reminds the same Supreme Court of its mid-summer view
regarding the Pension Protection Clause: “it is clear that if something
qualifies as a benefit of the enforceable contractual relationship resulting
from membership in one of the State’s pension or retirement systems, it cannot
be diminished or impaired” (Kanerva v Weems, 2014 IL 11581, ¶
38).
Furthermore, in each acting section of PA 98-599, the Belz Court
found that the law was enabled by the General Assembly’s diminishment and/or
impairment to the benefits of membership in the State retirement system – to
which the defendants (Attorney General Lisa Madigan) “admit…will reduce the AAI
[automatic annual increases] amounts certain pension system members
receive.”
Moreover, the legal team for the Attorney General of
Illinois openly admits that any operation of the law’s effect will generate a
mathematical reduction of COLA’s for retirees, a lessening of COLA’s for those
yet to retire, a declining of caps on pensionable salaries of current workers,
sudden raises in the thresholds for retirement ages, new methodology for
determining rates of interest(s) for members’ money purchase options…in sum, a reduction of overall pension
annuity payments.
But, in an affirmative defense of police powers, Lisa
Madigan considers such an admission of fiscal destruction a defendable strength
before before the Illinois Supreme Court?
Reconsider.
On his way to his carefully wrought conclusion, Judge Belz
cited other antecedent cases, which historically reinforce his considered
opinion: McNamee v. State; Felt v. Bd. Of
Trustees of Judges Retirement System; Kraus v Bd. of Trustees of Pension Fund
of Vill. of Niles, and Kanerva v.
Weems. Beyond “with prejudice,” the sobering weight of precedent figures heavily
in the Circuit Court decision.
Finally, despite the Chicago
Tribune’s plea for some guidance regarding any of the legally acceptable
and unacceptable aspects of the law, the act called PA 98-599 holds that 39
provisions making up the totality of the new law must be held and enacted in inseverability. That is, these subsections of PA98-599 are
“mututally dependant and inseparable from one another.”
In Judge Belz’s findings, because of this refusal to exclude
the overt benefit reduction provisions of the Act, “all 39 provisions
identified in the Act’s ‘[s]everability and inseverability’ clause must fail.”
Clarification: the law includes a promise to
guarantee funding for the State pension systems.
Further clarification: the inclusion of a promise to
ameliorate an unfunding caused by the State in order to receive legal
justification for taking the funding away from those owed is neither
inseverable nor acceptable.
Personally, I have spent years repeating the legal mantra of
Article XIII, Section 5, for my friends and family: “shall not be diminished
nor impaired.” But, perhaps it is reason
#6 of Judge Belz’s order in the finding of summary judgment of November 21st
I should begin memorizing:
“The defendants (AG Madigan, et.al.) have attempted to
create a factual record to the effect that, if a reserved sovereign power to
diminish or impair pensions existed, the facts would justify an exercise of
that power. The defendant can cite no
Illinois case that would allow this affirmative defense. Because the Court finds that no such power
exists, it need not and does not reach the issue of whether the facts would justify
the exercise of such a power if it existed, and the Court will not require the plaintiffs
to respond to the defendants’ evidentiary submissions…
In summary, the State of Illinois made a constitutionally
protected promise to its employees concerning their pensions benefits. Under established and uncontroverted Illinois
law, the State of Illinois cannot break its promise.”
