Friday, November 28, 2014

VOCABULARY - Judge Belz: AG Madigan cross motion denied WITH PREJUDICE

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. (

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, 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.”


  1. Well said, John Dillon:

    Any unilateral modification of the “Pension Clause” should be seen as “the result of a violation of fair dealing,” as an accommodation for “only” the General Assembly who have stolen money from the public pension systems for decades and are, thus, “avoiding a pre-existing duty rule” (Professor of Law, Emeritus, Claude D. Rohwer and Professor of Law, Emeritus, Anthony M. Skrocki, Contracts in a Nutshell).

    “The significance of any modification of the “Pension Clause” is “the extent to which [public employees] will be deprived of the benefit [they] reasonably expected; the extent to which [public employees] can be adequately compensated for the part of that benefit of which [they] will be deprived; […and] the extent to which the behavior of the party [Illinois General Assembly] failing to perform or to offer to perform [or] comports with standards of good faith and fair dealing” (Rohwer & Skrocki).

    The significant issue of Madigan’s pension reform is its attack on public employees’ rights to constitutionally-guaranteed compensation and the legislators’ obligation to safeguard those promises. An unconscionable constitutional challenge of those rights and benefits generates a serious threat to their security and sense of dignity as citizens and creates the unfair possibility for an economic disadvantage for a particular group of people and their families. This can never be legally or morally justified, especially when legislators have stolen money that was supposed to be paid into the public pension plans for decades

    The promise to honor commitments and pay for the public employees’ pension is of “sufficient importance” to all citizens of Illinois. Madigan’s pension reform is “an unequivocal manifestation of intention not to perform… legal duties…under a contract… When there is a duty of immediate performance of a promise, failure to perform in full is a breach” (Rohwer & Skrocki).

    May 6, 2013

  2. John, you said it all - accurately and clearly.

  3. Why am I not surprised! Good for you, John. Elyse Krug Miller (Liz)