Friday, August 29, 2014

Labor Day 2014 - In Respect and Admiration of Those Who Collectively Toil

Labor Day in Illinois, 2014

My Latin American friend Ernesto swung his new hybrid Escalade into the driveway the other morning and shook his head disapprovingly at my sign in the front year.

“What is this doing here in open display, my friend?  It makes you both look so…so...very low class.”

Ernesto was chastising my wife and me for our keeping a red, white, and blue sign that displayed “Proud Union Home” in front of the house.  Ernesto does not live in an area where such signs would be tolerated, nor would anyone ever see one.  There are codes to follow in Ernesto’s gated compounds, and there are the unspoken taboos.

You might remember Ernesto from several posts ago, when he disciplined me on the wrongness of contracts and the rightness of possible Illinois governors:

"Collective what?"
Monday, on Labor Day, Ernesto will celebrate with his family and friends, but it is very likely he will NOT celebrate Labor Day.  Not in the traditional or even the authentic sense.  Like the Chicago Tribune, which commemorated Labor Day a couple of years ago with praiseful editorials about the benefits of work for the soul and spirit, most of Ernesto’s ilk will avoid the real history.  Shun the real significance.

According to the United States Department of Labor, “the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers.  It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country” ( 

I think it’s always rewarding and refreshing for Ernesto to visit my “side” of town – not for Ernesto, but for myself.  I learn more…

The origins of Labor Day are obscured by the variety of movements at state levels to recognize the good work of all of us, and eventually those sentiments coalesced into a federal observation of a holiday.  Even as early as 1885, various municipal ordinances were being written to celebrate workers’ contributions.  Oregon was actually the first state to pass a law of such recognition in 1887; however, by 1894 nearly two dozen other states had adopted similar laws recognizing a day to honor workers.  By 1909, the Sunday before the Labor Day Monday was reserved nationally as Labor Sunday, dedicated to the spiritual and educational aspects of the labor movement. 

 Many argue about the actual individual responsible for the first Labor Day observance, but make no mistake about it: it was a union member or union official.  Some consider one Matthew McGuire the founder of the holiday across the river in New Jersey, while serving as secretary of the Central Labor Union in New York. Matthew was a machinist and member of Local 244 (International Assoc. of Machinists).

Others ascribe the incentive for the holiday to a Peter McGuire, general secretary of the Brotherhood of Carpenters and later co-founder of the American Federation of Labor.  I favor Peter only because of his supposed words defending such a holiday to honor all those “who from rude nature have delved and carved all the grandeur we behold.” 

Ernesto couldn’t have said it better.  Actually, Ernesto would never have said it. 

The first proposals of the holiday outlined a basic form for the observance and celebration, and remnants of that festivity are still observed in many towns and villages.  Parades were considered the first order of business, followed by drinking and barbecues.  Children danced their last moments of summer freedom, and neighbors gathered to share a respite from the hard work of building a nation, day-by-day and brick-by-brick.  Of course, it was also a jamboree tailor-made for lengthy speeches by politicians seeking labor’s backing.  

Have a wonderful celebration of Labor Day.

Monday, August 25, 2014

The Pritzker Family: A Truly Pathetic Display of ME, ME, ME in the Ice Bucket Challenge

Dr. Evil?
Pension Vocabulary: Plutocracy & Being Special like JB Pritzker

As a teacher in a somewhat affluent district, I remember those occasions, albeit rare, when a child of extreme wealth turned in a project or a carefully constructed item meant to broadcast the family’s high position and, there fore, the child’s pedigree.  Other students often marveled at the product, and in many cases even the wealthy child seemed a bit uncomfortable about the obvious over-the-top application of a theme or concept which was obviously produced by the family, not actually the child.

Penny Pritzker - see her in the video?
In fact, I remember those cases in my own life: a child in our 1950 grade school science etymology project turning in a seven-framed assortment of rare beetles collected from Madagascar to New Guinea by the family’s famous uncle.  My crude gathering of June bugs impaled upon bent pins seemed so meager, but we all understood that Willard’s show of force was, well, was for Willard to maintain his dominance.  And the teacher, Ms. Fears, was not about to question the sanctity of Willard’s nephew’s choices in our fieldwork.  We were limited to the south side of Chicago; Willard had his people around the globe to do the work.

Remarkably, this brings me to the recent spate of ice bucket challenges taking place on the Internet and in social media to help the ALS Association to fight the horror of Lou Gehrig’s disease.  My neighbors sat on the driveway yesterday in the brutal mid-day sun and had their children pour three buckets of cold water over their heads while Mom took the picture by phone and emailed it out to others.  Children and families participating in an altruistic effort to make a difference makes me smile…it always has.

One of our students back in those 1950’s asked to be excused from doing her project because she felt that pinning any bug to a soft wooden box bottom was a disgusting act, one worthless and unnaturally destructive.  She made me smile too.  I wasn’t ready to be her quite yet.  Ms. Fears didn’t like her much.  Judy went on to be a valedictorian.  Willard got in to Harvard.

JB Pritzker (worth $3.1 B)
There’s a lot of investigation about where this whole ice-bucket challenge began, but many think it was a minor league golfer named Chris Kennedy who started it, and the self-drenching was taken up quickly by others, even those who had been diagnosed with ALS.  Six days ago, donations were up nearly $23 million.  And the wealthy and famous?  They’re jumping in now. 

But while Justin Bieber and LeBron James and Bill Gates inundate themselves and co-opt a grass roots campaign into the realms of the very rich…I like my neighbors and others who do so and send a check for what they can afford.  Their video on Facebook does not go viral, nor does it call out the elite or aristocracy to play along.  It is real and heartfelt.  That makes me smile, too.

I happened to run across the latest little video taken – strike that.  If I said “taken,” I should have said carefully produced, orchestrated, and directed by the Pritzker family to become part of the new national assignment: the Ice Bucket Challenge.  Of course, like many things Pritzker, it is designed like Willard’s stuff was: to demonstrate dominance, power, connection, and name-dropping. 

Remember, the Pritzkers don’t just support education; they buy up a school and charter it, engraving their names on the limestone above the doors.   They don’t just run the Hyatt Corporation, they underpay their workers.  Penny, who works with Rahm to close CPS schools in the city, doesn’t buy a home, she takes up a block on Orchard in Lincoln Park.  J.B. is one of the top 200 billionaires in the world and seeks to change the nature of early childhood education to provide a U of C model for the masses.  They’re special.

Brother Tony.  Up to the challenge?
There’s something distinctive about the Willard’s in our world.  Take a look at JB Pritzker’s video below and wonder, as I did, at the deeper messages within.  This is once more a demonstration of power and influence, not necessarily assistance for the ALS Foundation.  And perhaps the description of extracting millions from “the people of Chicago” is more accurate than we could guess?  In actuality, this video is a notice to “insiders” and “big names” as to who I am – like a pathetic version of Shelley’s “Ozymandias.”  “Look on my works, ye Mighty, and despair.” 

By the way, the $26,000 JB boasts he will give with his current wealth is the same as my neighbor’s devoting less than a dollar in his annual earnings. 

Will Tony take the challenge?  Will Rauner?

Saturday, August 23, 2014

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

Pension Vocabulary: Affirmative Defense

On August 21st, 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” (

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 (]  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” (

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. 

Monday, August 11, 2014

Less Than 90 Days: Reminder by Henry Bayer

Less than 90 Days: Another Reminder

Near the checkout at a retail store the other day, I overheard the seller behind the counter remark to the buyer on the opposite side, “Anything will be better than Quinn, you know.”  The prospective purchaser nodded seriously and replied, “Tell me about it.”

With little more than that message as the salient reason to be governor, and sans any fleshed out or specific-laden examples of fiscal corrections for the state of Illinois, Rauner’s attack ads seem to be working well enough.   Now 12 points ahead of Quinn, he might just be able to sail on safely in commercial currents rather than actually explicate his positions regarding property taxes, pension issues, infrastructure needs, Medicare, poverty, education, etc. 

In fact, the identical Bruce Rauner is described quite adequately by one of my favorite “union ‘thug’ bosses” in a much earlier piece before Rauner’s win in the primary.  In case you haven’t read it, it is worth your while.   And it’s worth your concern.

Bruce Rauner's big lie
Henry BayerExecutive Director
January-February 2014
“When the Illinois legislature audaciously looted the retirement savings of the state’s public employees, many lawmakers dissented because the bill was clearly unconstitutional and immoral.
But a smaller group voted “no” because they felt the cuts weren’t deep enough. They were taking their cues from the leading Republican candidate for governor, Bruce Rauner, who wants to eliminate defined benefit pension plans and force public employees into 401(k)-style plans, left to the vagaries of the stock market.
How did someone who was a political unknown until recently gain such influence? It’s easy if you’ve got millions of your own money to spend promoting yourself. Rauner has been “introducing” himself to voters in phony, folksy TV ads seeking to disguise his status as a venture capitalist who made a good part of his immense fortune feeding off of those very public pension funds he purports to despise.
Rauner says he’s an “outsider” to public service, but he’s spent decades soliciting public pension fund dollars for his hedge funds to invest for a handsome fee. A few years ago, he received millions in Pennsylvania pension dollars to invest – after a $300,000 campaign contribution to that state’s Democratic governor.
Here in Illinois, a company owned by Rauner paid a member of the Teachers’ Retirement System Board more than $25,000 a month. Not coincidentally, his firm was selected to handle TRS pension dollars. The TRS member, Stuart Levine, is now doing time in federal prison for public malfeasance.
Despite, or perhaps because of, his sordid record of “paying to play,” Rauner is attempting to pedal a large load of hooey about “union bosses” being in “control” in Springfield.
One only has to look at the passage of pension-slashing SB 1, which legislators enacted in violation of the state’s constitution and over the vocal opposition of thousands of union members, to know who’s really calling the shots in Springfield. AFSCME and other public sector unions are important lobbying forces at the state capitol, but our influence (and financial contributions) can’t begin to compare to that of the corporate elite Bruce Rauner represents.
Of course, Rauner’s real target isn’t a handful of union leaders, but the hundreds of thousands of union members whose pay, pensions and workplace rights he wants to diminish.
He’s out to wipe out unions in the public sector because in his view they’ve raised the salaries of public workers too high. It’s more than ironic that a man who reported $52 million in income in 2012 claims employees who earn their relatively modest salaries through hard work are overly compensated.
His claim that AFSCME’s contracts with the state are the result of campaign contributions to the governors with whom we negotiated is a flat-out falsehood. Yes, we’ve negotiated contracts with the past five governors of Illinois that improved the standard of living of union members. But in most of those cases the union did not even endorse them in their runs for office. And, even when we did, the agreements often were only won after intensive member mobilizations all across the state.
In Rauner’s world, the truth doesn’t matter – but money most certainly does. His campaign is about whether the big money can sell the big lie.
The regular guy Rauner plays on TV couldn’t be more divorced from who he really is. He doesn’t want voters to know he owns nine homes and has claimed tax breaks on three, even though he’s entitled to just one such exemption. He doesn’t want them to know that while he lives in a fancy suburb, he falsely claimed residency in the City of Chicago, placed a call to a top schools official, and got his daughter ‘clouted in’ to a highly-regarded public high school.
Rubbing elbows and scratching backs is what Rauner has done to amass his fortune. He’s done it not only with Republicans, but also with Democrats like Rahm Emanuel, who benefit from Rauner’s largesse and are quick to return the favor.
Bruce Rauner wants to be governor to wipe out labor unions and destroy what little remains of the middle class in our state – all while steering more money to him and his friends. He’s trying to prey on the resentments of those who’ve already lost jobs and income – turning their anger away from the Wall Street wolves who robbed them and onto struggling public employees.
We can’t let Rauner make us the punching bag of this election season. There’s little more than 60 days left until the primary, and we are not about to spend them hanging from the ceiling in the gym. Let’s step into the ring and start fighting back before it’s too late. “