Saturday, August 22, 2015

Lisa Madigan: Will She File with US Supreme Court To Curtail Pension Benefits?

Lisa Madigan: Will She File with U.S. Supreme Court to Curtail Pension Benefits?

Although my wealthy friend Ernesto would remind me that all of my posts are unimportant and meaningless, this is one that I hope follows his hurtful description.

Within the next 18 days, Solicitor General Carol Shapiro, acting as the agent of Attorney General Lisa Madigan, may file a request for a writ of certiorari with the United States Supreme Court.  Emphasis on the verb “may.” 

In the media and newspapers, you will hear or read the term informally called a cert petition, but it is essentially a serious request by the losing party of a suit asking that the Supreme Court review the decision of the lower court.  The Solicitor General of Illinois has requested and received an extension from Justice Elena Kagan of the Supreme Court to allow until September 10th to file for a writ of certiorari asking the nine justices for a review of the unanimous decision of the Illinois seven justices in their decision of May 8th. 

You’ll remember that their decision struck down SB1 and the legal application PA 98-599 as unconstitutional.

The petition for Writ of Certiorari will contain a list of all the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ.  

Ms. Shapiro’s earlier request to allow for more time before filing included a brief explanation of the state’s earlier case of “sovereign powers,” an argument for the need for more time, and the 38-page decision of Illinois Justice Karmeier as Exhibit A.

Even if a formal request is filed in the next 18 days, the U.S. Supreme Court can refuse to consider the case.  In fact, the Court receives thousands of "Cert Petitions" per year, and denies all but about one hundred.  If the Court accepts the case, it grants a Writ of Certiorari.  That means the U.S. Supreme Court agrees to hear – or review – the decision of a lower court; in this case, the Illinois Supreme Court.

Think of “certiorari” as the legal term for the phrase “being certain.”  In other words, the higher court can make itself acquainted with the facts, the documents, and the arguments in a lower case ruling.  If the court has become sufficiently acquainted and agreeable, the court can call for argument or render a decision to overrule the earlier decision or possibly hold with it.

Cert. Denied is the term that will be tossed about if the U.S. Supreme Court refuses to hear or consider the May 8th  decision by the Illinois Supreme Court.

Finally, remember that all of this is moot if the Solicitor General does not file a formal request by September 10th.

In her letter requesting a stay until September 10th (for time to accomplish a possible request for a writ of certiorari), S.G. Shapiro included two earlier cases, which bolstered her argument for the stay: 

United States v. Winstar and, more importantly, United States Trust Company of New York v. New Jersey.  In both cases, arguments of state’s sovereignty are presented; in the former, a case for a certiorari review, and in the latter, the more important argument:

“A private contract can be modified by the legislature under its police powers when necessary to serve a legitimate public interest and the regulation is reasonable and narrowly tailored to promote that interest."

Within the carefully worded 38-page judicial response to the challenge against SB1 by We Are One and the IRTA, Justice Karmeier reminds the reader(s) “The State protests this conclusion is tantamount to holding that the State has surrendered its sovereign authority, something it may not do. The State is incorrect.  Article XIII, Section 5, is in no sense a surrender of any attribute of sovereignty.  Rather, it is a statement by the people of the State of Illinois, made in the clearest possible terms, that the authority of the legislature does not include the power to diminish or impair the benefits of membership in a public retirement system.  This is a restriction the people of Illinois had every right to impose.”

Likewise, it would appear that the Justices of our Illinois Supreme Court do not occupy the clean, thin air of only judicial philosophy.  They too recognize the unsettling and queasy financial position the State, after years of reneging on expected payment to the promised systems, bears. 

“The financial challenges facing state and local governments in Illinois are well known and significant.  In ruling as we have today, we do not mean to minimize the gravity of the State’s problems or the difficulty facing our elected representatives.  It is our obligation, however, just as it is theirs, to ensure the law is followed….Crisis is not an excuse to abandon the rule of law.  It is a summons to defend it.”

Beyond the moral and legal argument, the Illinois Justices offered suggestions and insights that the state had not yet done what met the criteria for the case United States Trust Company v. New Jersey:

Article XIII, Section 5 is hardly a “A private contract"; rather, it is a constitutional promise ratified by the people of Illinois.     It might be modified, therefore, but it cannot be undermined (diminished or impaired).  And, as the Illinois Justices have explained on no less than two occasions, if it were acceptable to be "narrowly modified," the consent to do so would have been clearly worded within the Pension Protection Clause.  

Furthermore, the State of Illinois has recently reduced the revenue stream with a reduction in income taxes -  nor has it sought other means by which to ameliorate its structural revenue shortfall.  The argument by Representative Nekritz that contracts cannot last forever, cannot be held inviolable over time may apply to a world outside of Illinois Constitution, but the Illinois Supreme Court reminds her and the U.S. Supreme Court Justices that the people's Constitution holds sway over a momentary or even self-manufactured crisis.  

One of my good blogger friends tells me that no petition will be filed.  All of this is a theatrical feint to make Lisa Madigan appear caring and capable.  “She did her best, so let’s consider her for governor.”  Ouch!  That’s cynical.

My other good blogger friend says, “They (U.S. Supreme Court Justices) will not contemplate this request seriously because it would impact the constitutional language in other states, impact other decisions like Arizona, and interlope directly into states' matters."

"Yet," he reminds me, "no matter what, they’ll continue to find some way to charge us as culpable for what they’ve done to the state; and they’ll keep coming after our golden egg – the pension funds."  Ouch!  Cynical too!

Ernesto advises I just accept that we will lose in the end.

How’s your summer goin'?

Monday, August 10, 2015

Public Education: If You Raze It, They Will Not Come


At a recent fundraiser for my favorite animal shelter, I worked with a young and very personable lady who was seeking a starting position as an educator.  She had been out of the University of Illinois for nearly one year, and she was not discouraged about yet finding an entry-level position for this fall, at least not yet. 

She was working as a salesperson with a local retail chain in one of the large suburban malls, and she mused, “I can remain there if nothing happens for me this fall.  I have to, mostly because I have around $35,000 in loans I need to start paying back as soon as I can. Besides, I’m on commissions and I work well with clients and I can make plenty if I need to stay.”

Average starting salaries in Illinois for educators begin around $36,000; but for elementary teachers, that start point can be well below $30,000.  And for a position providing a gross $2500 per month, it could take her an additional ten years to pay off the debt at $250 per month (without interest…).  And then, there’s graduate school?

I asked, “Given the situation with public education here in Illinois, the new governor who is trying to undermine collective bargaining, a Tier II arrangement which shorts any real retirement and will probably face a legal test of federal retirement qualification, a continued search for cracks in the May 8th  Illinois Supreme Court decision on SB1…and that’s just a few…why would you consider teaching?”

“For the prestige?” she smiled wanly.

“Really, “ she continued, “because my parents were teachers, and I loved the idea of growing up part of an extended family, one always sharing ideas and insights, and a love of learning.  We’d eat dinners while talking about our day and their day.  It was inspirational.”  

She was delightful.  And sadly, she is perhaps exceptional.

Maybe following your bliss no longer assures anything?

The devastation of the Great Recession upon state coffers, the downturn in state’s support of public education, the loss of job security and retirement benefits, the public’s consideration of collective bargaining benefits as unfair and exorbitant, and the general/political willingness to blame the societal fallout of poverty on educators has produced a serious shortage of trained and ready educators.

Average college student loan debt upon graduation is up over 10%, nearly $30,00.  In Illinois, and our neighboring state Indiana, approximately 64% of our college graduates are carrying debt when they depart the campus. 

Adding the need to find a suitable position to repay that debt – and do it without starving – many of our brightest potential educators in science, math, and special education – are passing the schoolhouse door and going directly into the private sector, where starting salaries begin at between $5000 and $10,000 more annually. 
Indiana, our neighbor state, and their freeze on property taxers as well as past-Governor Mitch Daniel’s successful war on collective bargaining, has left the Hoosier state short: “The crop of first-year teachers across Indiana decreased by almost a fifth in the past five years, leaving school districts hard-pressed to find educators as a new school year begins.”
According to the Indianapolis Star, “In some cases, schools will have to start the year with substitute teachers to temporarily fill vacancies until they find a suitable candidate. In many other instances, experts say, schools have to be less choosy when hiring teachers — and that can affect the quality of instruction.
“At Ball State University, enrollment in elementary and kindergarten teacher-preparation programs has fallen 45 percent in the past decade. Purdue University also reported a decrease in teaching majors.
“Multiple factors, including poor starting salaries and a hostile teaching climate, have driven people away from the profession, said Teresa Taber Doughty, associate dean for learning in Purdue’s College of Education.
 “The pervasive negativity in public forums has resulted in teachers and family members actively dissuading high school students from pursuing careers in teaching,” she said. “Additionally, starting salaries are not competitive when compared to other professions.”
“In Indiana, the average starting salary for a new teacher graduating from Purdue with a bachelor’s degree is $32,596 per year.”
Entire article: Click Here

The Indiana General Assembly, led by Republican Committee Education Chairman Robert Behning believes that a serious study should begin at once to identify the problem.  A study might not be quite enough. 
Meanwhile, public schools find themselves using substitutes in place of hires in the upcoming fall as they districts scramble to find qualified candidates. 
In fact, a recent article by Motoko Rich in the New York Times indicates the same issues of a complete lack of qualified candidates for teaching positions on the national level.  Because of the scarcity of candidates, many human resource administrators across the nation are finding themselves having to hire unqualified, inexperienced, and even un-credentialed candidates to fill the growing gaps. 
“Across the country, districts are struggling with shortages of teachers, particularly in math, science and special education — a result of the layoffs of the recession years combined with an improving economy in which fewer people are training to be teachers.
“At the same time, a growing number of English-language learners are entering public schools, yet it is increasingly difficult to find bilingual teachers. So schools are looking for applicants everywhere they can — whether out of state or out of country — and wooing candidates earlier and quicker.
“Some are even asking prospective teachers to train on the job, hiring novices still studying for their teaching credentials, with little, if any, classroom experience.”
California is issuing this year fewer than 15,000 new teaching credentials, but the state must fill nearly 22,000 open positions. 
“But educators say that during the recession and its aftermath prospective teachers became wary of accumulating debt or training for jobs that might not exist. As the economy has recovered, college graduates have more employment options with better pay and a more glamorous image, like in a rebounding technology sector.
In California, the number of people entering teacher preparation programs dropped by more than 55 percent from 2008 to 2012, according to the California Commission on Teacher Credentialing. Nationally, the drop was 30 percent from 2010 to 2014, according to federal data. Alternative programs like Teach for America, which will place about 4,000 teachers in schools across the country this fall, have also experienced recruitment problems.
The entire article is available here: 

Back again in Indiana, a model state for our new Governor Rauner, the associate dean for learning at Purdue’s College of Education warned that “’Shoring up the supply of teachers will depend on how much value society places on the teaching profession.  If the financial and social issues that plague the profession continue to be a problem, the population of teachers will remain at a critical point.
“Sadly, current teachers don’t feel valued for the work they do,” Associate Dean Taber Doughty said. “To reverse this national trend, we need to recognize the value of teachers and raise the profile of the profession.”
Indeed we do, Governor Rauner.

Sunday, August 2, 2015

AG Lisa Madigan: Keeping a Blind Eye to Political Corruption?

AG Lisa Madigan: A Blind Eye to Political Corruption in Illinois?
You’ve probably already read or heard about the plea from the FBI for all citizens to assist in the identification of those involved in political corruption in the State of Kentucky.

Federal crime-fighters started an outreach campaign Friday to recruit Kentuckians to help uncover government corruption and end the state's "fairly sordid" history of scandals that rob trust in government, law enforcement officials said.
“The FBI's "End Corruption Now" campaign includes an anonymous, toll-free tip line and an email address to allow people to report suspicions of wrongdoing by public officials. A billboard campaign in several communities will publicize the effort.”  Youcan read more here:
Although most if not all states are certainly not immune to corruption on the state level, Kentucky for years has held a notorious pedigree in this arena.   The amount of illegalities in the judicial, executive, and legislative branches push the Bluegrass State to the lead in a recent study by the Harvard University’s Center for Ethics, which finds that Kentucky ‘s state government is one of the two most corrupt state legislatures in the nation. 
No, the second is not Illinois. 
 The second state is New Jersey, but Illinois follows quickly in the dishonorable runner-up category, along with nearly ten other states.  In Illinois, the Harvard analysis characterizes political corruption at the state level as “Very Common.”  The study describes political corruption as beginning with favors exchanged for contributions and other back-door deals. 

“Whereas the most common measure of corruption uses only federal convictions, the Harvard study measures corruption based on the perceptions of experts, surveying hundreds of news and investigative reporters covering state politics. The reporters ranked the existence of both illegal and legal corruption in the executive, legislative and judicial branches on a scale of 1 to 5, from not common at all to extremely common.”

In other words, like the proverbial tree that falls in the forest when there’s no one around, the decibel levels of any corruption could be unfortunately muffled by a lack of legal identification, a dearth of whistleblowers, or even an unwillingness to prosecute.

And that brings us back to Illinois, and a recent Forbes article by Adam Andrzejewski, the Chairman of American Transparency and founder of the transparency website   

His careful appraisal of Lisa Madigan’s lack of industry in her Attorney General’s Office reveals no blatant willingness to do just whatever she is told, but quite the opposite: an unwillingness to perhaps do her job. 

From Mr. Andrezejewski’s piece: “Lisa Madigan – daughter of powerful Illinois House Speaker Michael Madigan – first ran for attorney general in 2002 vowing, “It’s time that Illinois’ highest legal official takes an active, hands-on role in cleaning up government. And I will not let them down.”
“Madigan said she’d even prosecute her father if he were corrupt. It was tough language and a high promise.

“Our organization, American Transparency ( fact checked her campaign promise. After ten years in office, Lisa Madigan had prosecuted only fourteen public officials for corruption: half were for DUI, reckless driving, or substance possession and she lost close to half of those cases. That’s an appalling record in a state with 7,000 units of government.
“Madigan switched positions on public crime busting in 2014 saying her office lacked statutory power. The Chicago Tribune editorial board refused to endorse her for re-election recognizing the depth of statewide corruption and her reluctance to rein it in.
“Illinois has a little-known provision of the law called a Quo Warranto application. Once public malfeasance by an officeholder or unit of government is documented by a citizen, Illinois law mandates that citizens first request help from the attorney general. The attorney general reviews the application and then decides whether or not to enforce state law. By denying the application, the AG essentially forces the citizen to file a private lawsuit on their own dime or drop the matter altogether.
“Over the past two years, nineteen Quo Warranto applications were filed with Attorney General Lisa Madigan. In all nineteen cases, Madigan denied the application. You can read a summary of these cases compiled by the noted downstate good government group, Edgar County Watchdogs.
“Madigan’s refusal to prosecute public corruption and enforce basic laws makes a mockery of the concept of public service. Forcing citizens to prosecute the malfeasance themselves is an unnecessary, undue burden. In the City of Marshall, Warren Le Fever had to spend $4,426 of his own money to file his own lawsuit to stop the “out-of-towner” from serving and voting on his city council.
“Madigan’s reluctance to use public funds to prosecute public corruption imposes a de facto “corruption tax” on every Illinois citizen. In other words, if ordinary citizens want to fight corruption, that fight has to be financed from their personal funds. Madigan imposes this tax in other ways as well.
“Consider Madigan’s role in the massive scandal continuing to unfold after our investigation of the College of DuPage (COD). President Dr. Robert Breuder was forced to go on leave after allegedly mismanaging college funds yet he claimed a “contract” (i.e. a golden parachute) through 2019. But that claim was dependent on ‘extensions’ conferred without public board votes.
“But in fact, our organization, American Transparency, found hard evidence that all board action since 2009 on Breuder’s contracts, addendums and extensions violated the Illinois Open Meetings Act (OMA). Because Quo Warranto applications are personally filed, I asked AG Madigan for help in December 2014. I argued that the contract was invalid because it was never lawfully conferred by the board.
“This was a perfect chance for the attorney general to clarify the law and stop millions of dollars in compensation to one public official at a junior college – a college serving working class and middle class students.

"Madigan, however, denied the Quo Warranto request. With this denial, the College of DuPage (COD) Board of Trustees then voted in January 2015 to give Dr. Breuder a $763,000 ‘voluntary’ retirement severance package. If Madigan would have enforced the law this golden parachute would have never been stitched together.
“Inexplicably, although the attorney general refused to get involved, she now agrees with our findings. On July 24, 2015, the AG suddenly ruled on a pending ‘request for review’ regarding the 2011 board ‘approval’ of the Breuder contract extension – after four years of stonewalling.
“She opined that the COD Board violated the Open Meetings Act.
“This is a welcome move but Madigan has a long way to go in the fight against public corruption and the lifting of her “corruption tax” that forces Illinois taxpayers to pester, badger and coerce her into doing her job.”

And let’s remember the Attorney General rendered her sudden change of heart after nearly seven months of public complaints, which escalated from watchdog groups to irked Illinois legislators and continued damning press releases.

Down the stretch, maybe we can pass New Jersey. 

You can read Mr. Andrezejewski’s entire article here.