Saturday, September 16, 2017

Lisa Madigan: So Long, Farewell, Auf Wiedersehen…"

Lisa Madigan: “So long, farewell
auf Wiedersehen, adieu”

I dropped a note to my good friend Glen Brown today regarding his excellent posts about Representative Scott Drury’s new promotional theme to supplant all current (and future Tier One) retirees with a 70 cents on the dollar buy-out.  Fred Klonsky was rightfully incensed.  Glen was academically and legally spot on.  

I wrote to Glen this afternoon: Drury is no different than the other crooks and schemers on both sides of the aisle.  They have collectively worked to bring the state to financial penury by maintaining an archaic revenue system that ignores the realities, and needs the state truly faces.  To this misadventure, they also apply a healthy dose of self-serving amnesia, so they can peddle along on the same course despite what the Illinois Supreme Court has written as precedent over and over.  

They'll never comprehend your image of a little old retiree in western Illinois depending on her pension check to eat.  They'll think only of her position of promised money before someone else deserving - like a child or poor family.  And they'd use that image to get their hands on the financial bank that is "our" pensions.  Insufferable and unconscionable. But of course the last 3 years have been populated with the children and poor pushed aside in the political battle between an uncaring Governor, a crafty Speaker, and 177 willing pawns.    

Looking back to the 2015 culmination of our pension battle for Tier One retirees, I remember the specious and immoral position that Lisa Madigan took to defend her father’s position on then SB1 to discard the promises made to those who paid their share of the commitment to the state for a pension retirement and the General Assembly’s bold and callous attempt to ignore their constitutional promises and diminish our pensions. 

Working in concert with the then Governor Quinn and her father, AG Madigan chose to defend the law to diminish pension obligations rather than seek a revenue fix by conjuring up an
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 my conduct is mitigated by the circumstances that required my 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 al 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).

“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. 

In May of 2015, the Illinois Supreme Court held unanimously that the pensions could not be diminished or impaired in this “Hail Mary” attempt by the state to avoid its constitutional and contractual obligations.
Now Representative Drury would have us (Tier One retirees) all believe that unless we take a lesser pension of 30%, we might get nothing at all.  Like AG Madigan’s baseless argument, unless we capitulate to his fear mongering, we will all suffer. 

When will the General Assembly and the legislators in our state finally devise a sensible and progressive plan to help Illinois move financially forward, rather than continue to shirk their constitutional responsibility while scapegoating those who have paid their share? 

Tuesday, September 12, 2017

EquiFax: We all suffer for criminal and immoral incompetence

A Nightmare to Remember

On April 14, 1912, Edward J. Smith and Thomas Andrews died on the same evening in the frigid waters off of Newfoundland when the RMS Titanic collided with an iceberg which ripped an opening over a square meter along the side of her unsinkable, metallic rind. 

Captain Smith had last been seen on the bridge just minutes before the ship swung impossibly vertical and plunged into the abyss.  The vessel’s architect, Thomas Andrews, also perished at likely the same moments, pulled by the suck of the sinking liner into frozen waters.

But that’s old school leadership.  You save as many as you can.  You go down with the ship you’ve commanded. 

In today’s post-modern Wall Street, the currents are not so clear.

Had the leadership of Equifax, in this case another Smith named Richard, been handling the Titanic, I imagine the passengers might have seen the managers skimming away on their own lifeboat after the first grinding bump.  In truth, they’d also have made sure to cut a nice opening in all the remaining life-craft before leaving.

Before reporting the breach in cyber-security, the management of Equifax sold off nearly $2 million in stock, avoiding a precipitous drop in value after announcing the loss of sensitive information – social security numbers, dates of birth, credit card numbers, account numbers – for nearly 150 million Americans.  In Today’s Tribune, States Attorney Lisa Madigan estimates that 5.3 million Illinoisans may have been compromised. 

According to the latest census counts, just over 9 million people are over 18 years of age with access to credit cards and bank accounts.  That makes it a coin toss if you or I have been compromised or not.  And the little guy, Junior, the child who has a social security number?  There might be two or three or four of those identities by the time he reaches 18. 

“Equifax, a major consumer credit reporting agency, disclosed Thursday that hackers had obtained sensitive information, including Social Security numbers and dates of birth, for 143 million people. The breach began in May and was discovered by the company on July 29. Shortly afterward, three company executives — Chief Financial Officer John W. Gamble; Joseph M. Loughran III, the president of U.S. information solutions; and Rodolfo O. Ploder, the president of workforce solutions — sold large amounts of their shares of Equifax stock.
“Gamble sold nearly $1 million worth of stock on Aug. 1; Loughran disposed of about $700,000. The next day, Ploder sold stock worth $250,000, according to Securities and Exchange Commission filings. The sales were not part of a pre-scheduled transaction, according to the filings.” (

I tried to get through to Equifax and Transunion yesterday and today.  I was going to place a fraud alert on my accounts and ask that the credit reporting company – whichever one I got through to – would inform the other two companies to follow.  As one might imagine, wait times are extreme given the crisis created by Equifax.  I say that because Equifax was cyber undermined in May of 2017, recognized what was happening in July of 2017, and publicly announced their perilous inside infection by criminals in September of 2017.  Iceberg?  What iceberg?

When I finally get through to Equifax, I listened to an aspartame-sweetened voice proposing that I answer a series of personal questions for them, so that they may be able to tailor my fraud alert or credit freeze to my and their personal satisfaction.  What?  After you have already lost all of my personal financial information to some outfit in Queens or Vladivostok?  Forget you.  I hang up.

My financial advisor warns me not to get too concerned.  “Just monitor your credit card and accounts each day and you should be all right.” 

But what if a year from now, there’s another me working in Muncie, Indiana, using my social security and not paying any taxes?  Or even a kidney patient in Madison, Wisconsin, who is co-mingling his bodily fluid(s) information with mine, so that when I need that hip transplant, the surgeons start by using the wrong blood type? 

“You’re over-reacting,” reminds my advisor, “you always do.”

Sometimes I curse my friend Glen for getting me started down this path.  He put out a blog post with advice about what to do, but he didn’t warn me about the corporate cabal that was behind the attempt to destroy me personally.  He gave me a false sense of hope that by returning to the very creatures that perpetrated this crime, I’d find some solace.  Wrong!

So, I decide to jump the lower protection fences of fraud alerts and go directly to “CREDIT FREEZE!”  I think to myself that we have no need to take out credit.  The cars still function and will for four or more years.  The house payments are not an issue and we do not plan on buying property.  We need a new credit card like we need a popsugar island adventure for twenty-something’s.  

Credit freezes cost between $10 and $30 to initiate.  You’ll have to do one for each of the three major credit-monitoring companies – Equifax, Experian, Trans-Union.  Once done, you (and the bad guys) cannot open new lines of credit given all your information (social security, date of birth, account numbers, even a note from your deceased mom)  because you have generated a new block, a pin number that allows you to hold each of the three major companies from releasing any information to someone (car dealer, credit card company, insurance broker, etc.) . 

When you need to release the freeze, you inform the credit reporting companies, use you pin and answers to verify who you are, and pay another small fee to do so.  Currently, in Illinois, Lisa Madigan is trying to force Equifax to pay for all of these additional costs to consumers for freezes sought in protection for what has happened.  In addition, more than one class action suit has begun in Illinois and many more across the nation to bring Equifax to monetary justice for what it has done. 

Me?  I am 2 hours and 52 minutes into the film Titanic – only one minute to go and things are not looking good for Leonardo – and I expect that I’ll soon get off of hold with EquiFax so I can get my own Freeze in place.  Brrrrrrr.

Sunday, September 3, 2017

2017 - The Origin of Labor Day

Labor Day in Illinois 2017

Once again, my Latin American friend Ernesto swung his new hybrid Escalade into the driveway the other morning and shook his head disapprovingly at our sign on 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.  Even the predominant Trump signs have been tastefully placed in the lower right of picture windows.  There are codes to follow in Ernesto’s gated compounds, and there are the unspoken taboos.

A union sign is heresy.

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

"Collective what?  …don't be absurd."
 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.  They’ll 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 concurrent movements at state levels to recognize the good work of all of us; and fitfully, 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. 

You won’t find this information in the Chicago Tribune.

Many argue about the actual individual responsible for the first Labor Day observance, but make no mistake about it: it was undoubtedly a union member or union official.  Some consider one Matthew McGuire the founder of the holiday from 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. 

My Grandfather's memento, a small window sign that warns "No Irish Need Apply" under the HELP WANTED caption sits proudly on my desk.  Thanks, McGuire, whichever you were...

 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.  

Let's all be proud of our good work and what we have wrought together, not – as the Tribune would have us believe – just that we are lucky enough to have work.  

Have a wonderful celebration of Labor Day.