"Of Which" Your Pension Hangs on Two Words?

OF WHICH…    

Unlike an affirmative defense one might expect to find in a regular criminal court proceeding (that is, a defensive strategy that justifies accountability for what appears an illegal act but denies culpability out of necessity or circumstances), March 12th's oral “pension reform”  arguments before the Illinois Supreme Court by the Attorney General’s office proposed (1) a return to an earlier court for re-consideration, (2) a request to disregard the unique position of the Pension Protection Clause from other Contracts Clauses, and (3) a promise that the Police Powers argument to lessen the promised benefits of public employee retirees would never be used for other situations or contracts made by the state – because, well, this time and this recession was worse than expected?

It was not a classic affirmative defense.  It was a request for a do-over, an argument on semantics, and a promise to be good from now on.

A lion’s share of the argument was identical to the position we have all been hearing from “Pension Reform Architect” Representative Elaine Nekritz for the last few months.  "There is nothing absolute."  Not free speech, not the right to bear arms…nothing. 

Nothing is promised – even when we promise it?  “There is no statute we make, that we cannot undo in a moment later,” Rep. Nekritz said to me one day in her office. 

Justice Thomas was quick to point out today that this “dire emergency” was of the state’s own making.  So, what would prevent them from doing the same thing again with another group, with another contract, or another promise?

Counselor Shapiro’s response was that such a need for Police Powers would never be utilized willy-nilly.  It was a serious action forced by the deadly nature of a situation.  One that was nurtured, developed and then decried by its own maker? 

And Justice Thomas noted, the same office of Attorney General, which had called for an expedited hearing of the issues, was now requesting a remanding of the case to the earlier Circuit Court of Judge Belz to re-examine what exactly might constitute acceptable restrictions on pension benefits now and in the future.  As Justice Thomas, asked Ms. Shapiro, “why do you now want to have this case remanded to a previous court when such a response (by the Supreme Court) would impede the speedy decision you once wanted? "
   

Kwame Raoul and Elaine Nekritz and others who slap dashed SB1 together based upon a bi-partisan willingness to punish the promised needed some response other than an acceptance of Cullerton’s agreement in trade-offs for an earlier Senate Bill.  Under Madigan’s tutelage, they decided to “diminish and impair,” and hope that the courts would give them a revised and re-edited pathway by which to divert more earned money from public workers.  Today, Justice Thomas, and Counselor DeVito frowned upon such a crafty request for other people or judges to write their laws.

Indeed, we are forewarned SB1 was just a first draft, tossed to the courts for further editing and review. Beware public unions and bloggers.  Much more to come.

Representing Attorney General Lisa Madigan, Shapiro’s argument today included the scrutiny of the words “of which,” a kind of squirmy semantical gymnastics that might have made even a culpable Bill Clinton flinch.

Shapiro: “Now after the clause has established public pensions are an enforceable contractual relationship, the clause says the benefits of that contractual relationship shall not be diminished or impaired… 

“But the diminishment and impair language simply cannot bear that weight.  First, the diminishment and impair language refers back to the enforceable contractual relationship.  It says that the, the, the public pensions are enforceable contractual relationships the benefits of which shall not be diminished or impaired.  It does not say that public pension benefits shall not be diminished or impaired.” 

In fact, most dictionaries and reference texts indicate that the use of the relative pronoun “of which” indicates an emphasis upon the preceding noun – in this case, benefits. 

Thus, more than simply public pensions, “of which” indicates the enforceability of the benefits themselves – COLA, etc.

Beyond this, Shapiro’s arguments include many of the hints and predictions offered by Representative Nekritz in earlier interviews and communications.  The Pension Clause cannot be absolute, regardless of its placement as unique and away from the Contracts section of the Illinois Constitution as a protection.  The General Assembly wants to return to some other way to short shrift pensioners after receiving some illumination form the courts as to what they may “diminish and impair” and what they may not. Drafters of the Illinois Constitution of 1970 did not follow the kind of requirments we’d want, although their intent to enforce an annual payment is clear and implied (DeVito).

And, even though the Office of the Attorney General characterizes the argument by the public unions and IRTA as a wicked attempt to scare, they also admonish that this kind of pension protection “would tie the state’s hands when its need to act is most pressing.  We cannot emphasize enough that plaintiffs’ absolutist reading of the pension clause has effects that go far beyond this case.” 

Consequently, Justice Thomas’ concern that the General Assembly could indeed create such another crisis and request another consideration of necessary Police Powers in order to avoid or renege on payments owed under contractual arrangement.  “Aren’t we giving the state the power to modify its contractual obligations whenever it wants?”  

Shapiro argues that the Pension Clause should not be read as a mathematical formula. 

I agree.  It is not that at all.  With our paying our share into Illinois’ promised pension systems, with our paying into Illinois’ pension system without the promise or safety of Social Security, with our having retired based upon those promises…it is a moral formula.