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” (http://www.law.cornell.edu/wex/affirmative_defense).
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 (mylegalwriting.com)]
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” (http://definitions.uslegal.com/m/motion-to-strike/).
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?
