Friday, November 21, 2014

Lisa Madigan: Who or What Could Trump Police Powers?

LISA MADIGAN: What or Who Could Trump Police Powers?

“Remember,” Representative Nekritz  said across the desk, “there isn’t a law or statute that the General Assembly passes that we can’t undo later…”

Maybe Not…

(From the IRTA) Judge Belz Rules in Favor of Retirees SPRINGFIELD - The Honorable John Belz handed down his ruling today from the 7th Judicial Circuit Court stating that pension rights are constitutionally protected for retirees in Illinois. "I am encouraged by the ruling made today by Judge Belz," said Bob Pinkerton, President of the Illinois Retired Teachers Association. "I remain hopeful that this decision, and the previous verdict made by the Supreme Court on Kanerva, will once and for all determine that Senate Bill 1 is unconstitutional and reiterate that the pension protection clause means pension benefits for current workers and retirees cannot be changed." Senate Bill 1 would cut a retiree's cost-of-living adjustments, increase the retirement age of current employees and make unconstitutional cuts to the pensions of working and retired members of the Teachers' Retirement System. Now that Judge Belz has ruled on the case, the IRTA and other organizations involved in the lawsuit are preparing for the Attorney General's Office to continue the fight by taking their argument for the constitutionality of Senate Bill 1 to the Supreme Court.

Henry Green
THANK YOU: Henry Green and Helen Kinney
Delegates to the 1970 Illinois Constitutional Convention

Without Henry Green’s and Helen Kinney’s foresight, wisdom and prescience of likely future political irresolution, the members of the five retirement systems in Illinois could already have suffered the fate of other public employees in some other states across the United States (Minnesota, Colorado, Rhode Island - to name a few).  Both individuals were delegates to the Constitutional Convention of 1970, and Mr. Green was the primary sponsor of Article XIII, Section V, which states that  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.  Ms. Kinney was the secondary voice behind this attempt to insert into a constitution unchanged for one hundred years a new guarantee of retirement security for those who toiled for the state. 

More new vocab: 

Prior to the efforts of these two, pension rights were dependent upon whether one’s pension plan was compulsory or optional.  In the former, a person signed on to the retirement program offered at that point in time by the company, state, or organization.  In that sense, according to one judicial review, “pension benefits in mandatory plans (were) mere gratuities…springing from the appreciation and graciousness of the sovereign. (Jan. 2008.  Handbook of Illinois Pension Case Law. Illinois Committee of Government Finance and Accounting)”   In other words, as mere statutes, compulsory pensions could be amended, repealed or ignored by an act of the legislature in Illinois.  On the other hand, later rulings by the Illinois Supreme Court found that when a public pension was optional, the employee’s right to receive later benefits was more likely a contractual certitude. 

After 1970, and the adoption by the people of the State of Illinois of the new Constitution and Article XIII, Section V, the issue of a reduction in pension payment due to a disability was brought before the courts (Kraus vs.  Board of Trustees).  The court, led by Justice Stamos, relied heavily upon the transcripts and comments of delegates Henry Green and Helen Kinney in order to discern their intent in the original drafting of the “pension clause.” 

According to conversations and notes by Henry Green, “The underlying purpose of the pension clause was “to provide public employees with a basic protection against abolishing their rights completely or changing the terms of their rights by reducing their benefits after they had already embarked upon employment. (”   Green had admitted that he “promoted the pension promise, which was based on a 1938 amendment to the New York State Constitution, because of concerns raised by university employees who had lost ‘faith in the ability of state and local governments to make benefit payments.’(”

Helen Kinney
Helen Kinney, later to become a distinguished judge in DuPage County was more direct: “Benefits not being diminished really refers to this situation: If a police officer accepted employment under a provision where he was entitled to retire at two-thirds of his salary after twenty years of service, that could not subsequently be changed to say he was entitled to only one-third of his salary after thirty years of service, or perhaps entitled to nothing.  That is the thrust of the word ‘diminished.’…It is simply to give them a basic protection against abolishing their rights completely or changing the terms of their rights after they have embarked upon the employment – to lessen them. (15 Feb 2011. IEA Fact Sheet: Reducing Pension Benefits for Current Educators)”

The Civic Committee of the Commercial Club of Chicago’s legal advisors (Sidley Austin) argue that two voices of the many delegates involved in the drafting of the Illinois Constitution do not speak for the entire body of delegates.  What about the endorsement of both Republican and Democratic parties in 1970?  What about the more than one million voters who ratified it?  What about common sense?   

Nota Bene:

“The defendants 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 defendants can cite to 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. The plaintiffs having obtained complete relief, the Court also need not address at this time the plaintiffs' additional claims that the Act is unconstitutional or illegal on other grounds. See Kanerva, 2014 IL 115811,1158. in summary, the State of Illinois made a constitutionally protected promise to its employees concerning their pension benefits. Under established and uncontroverted Illinois law, the State of Illinois cannot break this promise.  Judge Belz


  1. “The Clause makes the State a Guarantor based on its plain meaning, Convention history, Illinois court decisions, and common law understanding of pension payments as creating a debtor relationship. Sidley’s ‘guarantor’ argument ignores the Clause’s plain language and common meaning.

    “Sidley’s position is untenable for several reasons. First…, the Clause contains prohibitory language that pension benefit rights cannot be ‘diminished’ or ‘impaired.’ Illinois courts have interpreted the word ‘diminish’ under both the 1870 and 1970 Illinois Constitutions as a mandate to pay an obligation when due. As a consequence, Illinois courts will presume that the word ‘diminishment’ as used in the Pension Clause imposes an identical mandate that pension payments be paid when due, especially since the term has a settled legal meaning.

    “This conclusion is bolstered by Delegate [Helen] Kinney’s statements at the Convention. Delegate Kinney explained that the term ‘impair’ ‘meant to imply and intend that if a pension fund would be on the verge of default or imminent bankruptcy, a group action could be taken to show that these rights should be preserved.’ She further explained that while the Clause ‘was not intended to require 100 percent funding or 50 percent or 30 percent funding,’ it would trigger funding if a court ‘determine[d] that imminent bankruptcy would really be [an] impairment’ in that pension payments could not be made.

    “She also stated that ‘if the word ‘impairment’ bothers people, I suggest, if it is the wish of the Convention, that word could be deleted, and the rest of the [Clause] could stand’ via the word ‘diminish.’ In addition, the Illinois Supreme Court concluded in Lindberg [People ex rel. Illinois Federation of Teachers v. Lindberg, 1975], McNamee [v. State, 1996], and Sklodowski [People ex rel. Sklodowski v. State, 1998] that the Clause guarantees that pension recipients will receive pension payments when they become due. Relying on the statements of Delegates [Henry] Green and Kinney, the court explained in McNamee that the Clause was ‘intended to force the funding of pensions indirectly, by putting the state and municipal governments on notice that they are responsible for those benefits.’ As a result, Sidley’s search for the ‘magic’ word ‘guarantor’ in the Clause is unnecessary given the meaning of the terms ‘diminish’ and ‘impair.’" (M. Madiar, former Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate).

  2. Make that Eric M. Madiar, ormer Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate.