Glen
Brown has been assiduously reviewing the arguments and positions of the
consolidated legal staffs representing We Are One, the IRTA, etc., in their
response(s) to Lisa Madigan’s Police Powers/ affirmative defense originally
submitted before the Illinois Supreme Court in January 12 of 2015.
The
result is an attentive compilation of argumentative and legal positions as
presented by these proponents of the Pension Protection Clause. On March 11, counselors DiVito and Shapiro
will make oral arguments before the Court.
The
entire brief presented to the ILSC is available at
If
you have not done so, I urge you to take the time to read Glen Brown’s careful
examinations of oral arguments scheduled for March 11th, the
significant precedents to this suit, the questions of terminology like
“diminished or impaired,” etc. The
entire collection is available at his blog site:
“…The Federal
Constitution Does Not Prohibit a State From Limiting Its Own Powers Through Its
Constitution.
“The issue before this Court is the
extent to which the Pension Protection Clause of the Illinois Constitution
limits the power of the General Assembly. There is no federal question.
Nevertheless, the defendants argue that the ‘reserved powers doctrine’ of the
Contract Clause in the federal Constitution prohibits a state from
limiting its own powers under its own law. (Def. Br. at 40-45.) The defendants'
theory is unprecedented and contrary to basic principles of federalism.
“The reserved powers doctrine merely
holds that the federal Contract Clause will not lock a state into a contract
that surrenders one of several specific sovereign powers. U.S. Trust Co. of
New York v. New Jersey, 431 U.S. I, 23 (1977). The doctrine does not
require states to maintain the maximum sovereign powers permitted by the
federal Constitution. None of the cases cited by the defendants supports that
proposition. In fact, the United States Supreme Court has explicitly invited
states to limit their sovereign powers if they so choose. Compare Kelo v.
City of New London, Conn., 545 U.S. 469, 489 (2005) (‘We emphasize that
nothing in our opinion precludes any State from placing further restrictions on
its exercise of the takings power.
“Indeed, many States already impose
'public use' requirements that are stricter than the federal baseline. Some of
these requirements have been established as a matter of state constitutional
law, while others are expressed in state eminent domain statutes’) (footnote
omitted) with U.S. Trust Co. of New York, 431 U.S. at 23-24 (recognizing
the power of eminent domain as an essential sovereign power).
“The Illinois Appellate Court has
likewise recognized that ‘the State is free as a matter of its own law to
impose greater restrictions on the police power than those held to be necessary
upon federal constitutional standards.’ Parkway Bank & Trust Co. v. City
of Darien, 43 III. App. 3d 400, 406 (1976).
“The defendants' reserved powers
argument confuses contracts and statutes with constitutions. The reserved
powers doctrine addresses the surrender of sovereign powers by contract or
statute. See, e.g., U.S. Trust Co. of New York, 431 U.S. at 23-24. This
Court, however, is being asked to interpret a constitutional provision. There
is no reserved power exception to the specific limits which a state's
constitution places on that state's legislature. See, e.g., O'Brien, 219
III. 2d at 100 (‘the General Assembly cannot enact legislation that conflicts
with specific provisions of the constitution’); Flushing Natl. Bank v.
Municipal Assistance Corp. for City of N.Y., 40 N.Y.2d 731, 740 (N.Y. 1976)
(‘the police power which may override statutes is not a higher law which
transcends Constitutions as well’).
“The irrelevance of the reserved
power doctrine to the interpretation of the Pension Protection Clause is well
illustrated by Flushing National Bank, a case arising from the State of
New York's efforts in the 1970s to reduce New York City's crushing municipal
debt.
“At issue in Flushing National
Bank was a law preventing certain short-term municipal noteholders from
enforcing their notes in court for a period of three years. Id. at 733.
The New York State Constitution contained a clause requiring the City to pledge
its ‘faith and credit’ to all debt obligations. The court interpreted the faith
and credit clause as an unambiguous commitment, without exception, to pay the
notes as they came due—a ‘super contract,’ as the defendants would describe it.
Id. at 734-36.
“The New York Court of Appeals held
that regardless of the city's .fiscal distress and the legislature's
claimed ‘police powers,’ the faith and credit clause flatly prohibited the
moratorium law. Id. The court further held that the legislature's
violation of this constitutional provision could ‘not be justified by fugitive
recourse to the police power of the State or to any other constitutional power
to displace inconvenient but intentionally protective
constitutional limitations.’ Id. at
736.
“Of particular relevance to the
defendants' reserved powers argument, the court explicitly declined to apply
federal Contract Clause jurisprudence because ‘Wederal constitutional
provisions, especially the impairment clause, cast little light on the State
constitutional issues in this case.’ Id. at 740. In other words, the
state's constitution, not a contract, limited the legislature's power, so the
question of reserved powers was beside the point.
“Here, just as in Flushing
National Bank, a constitution, not a contract or a statute, prohibits the
legislature from avoiding a financial obligation. Just as in Flushing National
Bank, the defendants invoke police powers and a purported fiscal emergency
as justification for doing precisely what the State Constitution prohibits.
Just as in Flushing National Bank, the federal Contract Clause and the
reserved power doctrine are beside the point. Regardless of whether a
legislature can surrender its sovereign powers by contract or statute, no
reserved sovereign power allows a state legislature to sidestep the plain
prohibitions set out in its own constitution…”
from Brief of ISEA RSEA Heaton and Harrison
Plaintiffs-Appellees
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