Active Todd Mertz: Letter from the Inside on Eve of Rauner's Swearing In.

Todd Mertz: A Letter from the Inside

Friends and Colleagues,

Governor-elect Rauner becomes Governor Rauner on Monday.  (That was difficult to type)

Although we are all exhausted from fighting for our constitutionally protected pensions over the last five years, we have to be ready to get back in the ring.  But this time the fight is going to include much more than pensions.

We know that Rauner will be the most unfriendly Illinois Governor in history for teachers and public education.  He has vowed to come after our collective bargaining rights, push for right-to-work laws (also known as "right-to-work for less" laws), increase the number of charter schools even though study after study prove they do not outperform traditional public schools, and dump us all into a 401(k) plan with absolutely no guarantee of anything in retirement. 

Of course, he also said that Illinois teachers are 23% overpaid. 

In regards to the pension theft bill (SB1) that was signed into law, Wednesday's Tribune article titled, "Illinois Government Worker Pension System Remains Big Issue for Rauner, stated "It's a law that Rauner lobbied against, arguing it did not go far enough." 

I believe that we are going to be in for the fight of our lifetime regarding our careers.  It is going to get ugly.  Really ugly. 

Attacks on teachers and public employees pitted neighbor against neighbor in Wisconsin, Michigan, Indiana, and Ohio. 

But some of my friends have tried to reassure me that, unlike our neighboring states, we have a very heavy Democratic base in the IL House and Senate.  In fact, supermajority in the House.

But House Speaker Madigan and Senate President Cullerton are no friends of teachers and state employees.  They managed to get 62 votes in the House and 30 votes in the Senate to pass an illegal bill (SB1) that cuts teachers and state employees' pensions by up to 50% in retirement. 

I also believe that Rauner will package his plans/budget in a way that may get our legislators to reluctantly go for the bait, despite the bills being devastating for schools and educators.  Rauner is smart and manipulative, and he will get what he wants. 

If the Pension Bill (SB1) is Ruled Unconstitutional, What Is Plan B?

If the Illinois Supreme Court Justices rule in our favor (which I believe they will), I predict that instead of fixing Illinois' problem (revenue), the attacks on teachers and state employees will become even more vicious. 

Cullerton, for instance, has even suggested that if SB1 is ruled unconstitutional, our salaries could be frozen indefinitely, because, he says, they aren't protected by the Illinois Constitution.

As I have written about before, some legislators want to amend the IL Constitution to reduce or eliminate our protections. Not an easy task and many hoops to jump through, but if Rauner gets behind this and makes a case for Illinois citizens to vote against protecting our pensions, we could be in big trouble.  Rep Joe Sosnowski of Rockford has vowed to bring this legislation forward in the spring.   

Others have said that an option (requiring proper forthcoming legislation) would be to fire every teacher and state employee and rehire them with a fraction of their benefits and zero pension obligations. 

In fact, I wrote about this back on July 1, 2013.  In Chicago Now (owned by the Tribune) John Tillman, CEO of the conservative Illinois Policy Institute think tank, states, "Fire all the state employees.  Replace them with contract employees.  Then we don't have to worry about shelling out for extravagant and backbreaking pensions." 

Tillman wants to replace trained, educated, and certified Illinois teachers with low-paid, temp employees with no benefits.

And so does Rauner.

The "Perfect Storm" 

There are four possibilities that could happen very soon--each of which would be devastating for public education and the teaching field.  I am not an education finance expert, but I do know that it would be unimaginable if any, or all, of these proposed plans come to fruition: 

1.  Shifting the Pension Costs.  Madigan, and others, want to wipe their hands from any future pension obligations.  They want to pass that responsibility on to local school districts, which have already been operating on a skeleton budget for years.  Most districts have laid off teachers and support staff and watched their class sizes balloon.  Historically, teachers pay 9.4% of each paycheck to TRS.  The state IS SUPPOSED to pay about 7-8% (varies).  That additional 7-8% would be inconceivable for most school districts. 

2.  State Income Tax to Rollback From 5% to 3.75%.  Unfortunately, there was not enough support in Springfield in the fall to stop this scheduled rollback.  This lack of already low revenue is going to most likely impact education funding.  Legislators have already agreed to let this rollback happen and let Rauner deal with it.  This will mean that our state will have $6 billion less in revenue over the next year and a half.

3.  SB16.  This bill unfortunately does not increase funding for education in our state, but instead changes how the funds are distributed.  Suburban districts would see an enormous hit from the state.  My district alone, Indian Prairie District 204 in Naperville, would see a $10.1 million loss in state funding over the next four years. 

4.  Freezing Property Taxes.  Rauner's campaign promise included freezing property taxes statewide.  If any of the above three events happen, towns and cities would have no choice but to raise property taxes to fund education...unless Rauner succeeds at freezing them.  School funding and education would be starved. 

Of course, purposely starving education funding would be a great strategy for Rauner to build public support statewide for corporate and private interests to infiltrate or replace our public school system as we know it.  

I hope I am wrong about all of this.  Every bit of it. 

But just in case I'm not, leave your legislators on your speed dial. 

--Todd Mertz                

Seeking Inspiration: Or Just Gambling?

Seeking Inspiration: Or Just Gambling?

In the spirit of the New Year and the possibility of renewal, a close friend sent me an e-mail chain letter the other day.  “Please send an encouraging quote or verse to the person whose name is in position 1 below (even if you don't know him or her). It should be a favorite motivational poem/prayer/meditation that has lifted you when you were experiencing challenging times. Don't agonize over it--it is one you reach for when you need it or the one that you always turn to…”

I'm a sucker for these things.  I jumped on immediately and sent a quote from Tartt’s The Goldfinch that had been ricocheting in my head the last few months. 

After that, we were asked to blind copy the directions to another 20 friends or acquaintances.  My sister-in-law, who has unnumbered animals running about her house and numerous degrees, responded, “I don’t even have 20 friends or acquaintances, nor would I want to.”  Thanks for the reality, if not inspiration.

Anyway, I in turn started receiving some inspirational lines as well…from people I didn’t know and even some which were more remindful of less-than-motivational perceptions.

“None of us are getting out of here alive, so forget the inspiration…”

Well, Happy New Year to you too…

Adding to that offering of despair, I was watching year-end television the other night, and Chicago Tonight’s Year in Review was discharging predictions for the New Year.  When Eddie Arruza isn’t emceeing, Paris Schutz spends most of his time discussing state politics and the latest pension issues in Springfield.  Paris began enumerating all the additional costs, the loss of the tax increase, the depth of the debts Illinois faces.

Phil Ponce reminded us that in order to make up that debt we each would have to pay $20,000.  Each…includes all family members.

Someone joked, “Get out your checkbook…”  Nervous laughter.  Lots of guffaws, like that would ever happen.

This afternoon, some chain person I don’t even know sent me my inspirational message.  I hesitated before opening, because in reality, this morning was colder than the lower circles of hell, my feet were soaked, and the dog wouldn’t come back in the park, and…well, the last thing I needed was some well-meaning person to tell me life is a gift.

“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

Didn’t expect that.

In my heart, I want that to be a lock.  In my hopeful belief in justice and law, I want the Supreme Court of Illinois to set that timetable on Monday next week and then uphold that promise made by the people of the state to those who toiled for the state – probably sometime in March. 

But I honestly worry about it.

The moment Judge Belz upheld the unconstitutionality of SB1, the Tribune was quick to answer in ink and cartoon the same old falsehood: pensions are the problem, not the enormous debt created by half a century of ignoring the necessary payment ( http://www.chicagotribune.com/news/ct-illinois-budget-met-0104-20141231-story.html - page=1) .

Too many people buy this line...

The consistently simplistic depictions by Scott Stantis illuminates their distaste for pensions, not the dilemma Illinois has got itself into by not paying what was due/promised for half a century. Their latest look at the budgetary crisis facing our new governor, a tax-avoiding venture-capitalist obfuscated by vague promises and ambiguous strategies, identifies “hard costs such as pensions and pension borrowing” the pivotal cause of the state’s fall into the red.

Too many people buy this line.

In addition, the plaintiff theater provided by Rauner – like Claude Raines crying “I’m shocked” in Casablanca – plays smoothly into the Speaker’s Attorney-General daughter’s call for Police Powers to avoid the death spiral that Illinois faces…that Rauner will accelerate?

Even hard-working and seemingly thoughtful Paris Schutz seems suddenly convinced that these factors and this puppetry will have some significant effect upon the Illinois Supreme Court Justices.  This was his end-of-year prediction:

“I want odds on this, Phil.  The Illinois Supreme Court is going to overturn the lower court hearing and uphold the pension reform law.” (http://chicagotonight.wttw.com/video)

I’m getting a few inspirations every hour now, and I kind of hope they stop – for a lot of reasons, and I would imagine you could agree. 

On the other hand, I have to thank the stranger who reminded me of the only promise I can hold onto as we prepare once again to do battle with the thieves that we’ve elected. 

Here's lookin' at us, Kiddo.

Happy New Year.

On the Eve of Pension Appeal: A Recused Justice?

PENSION APPEAL: Recused Justice?

“Our founders designed courts to be distinct from the other two branches of government. In order to govern, state executives and legislators must woo popular majorities and play the game of politics, Judges are assigned a different job: to protect our rights, and to decide cases fairly and one at a time, based on the law and the Constitution, not political pressure.  An independent judiciary is one of the crown jewels of our system of government.”  -Chief Justice William Rehnquist

Nearly a decade ago, Supreme Court Justice Alito belligerently shook his head as President Barack Obama unexpectedly and publicly scolded the highest Federal Court for its recent decision regarding Citizens United. 

The President had seen similar disquieting trends in his own native state of Illinois some years before.  Since then, the outside influences on judicial campaigns in Illinois that a young state Senator Barack Obama characterized as “unseemly” have evolved to flagrantly repulsive in the decade since he tried unsuccessfully to move a bill to reform the judicial election process.  He had not counted on Speaker Madigan’s power to block it.

In fact, the current Justices on the Illinois Supreme Court remain in office and seated for ten years through a partisan elective process that bears the manipulation of significant political and monetary influence of various groups and individuals – all vying for some type of consideration by the Court if and when they so need it. 

For those of us with public pensions, quite soon these wealthy or self-serving strategic benefactors have much to gain (or lose) in the upcoming appeal by Lisa Madigan (Speaker Madigan’s daughter) regarding the November 27^th ruling by Judge Belz that SB1 (PA98-0599) – the pension theft bill – is unconstitutional. 

You might remember that Speaker Madigan once boasted in December of last year that he felt secure after his passage of SB1 that at least four of the Justices in the Illinois Supreme Court would find SB1 constitutional.  Like most of Madigan’s observations, his announcement was cryptic but also illuminating.

Following Supreme Court regulation, even if one or two Justices were to recuse themselves from hearing the pension appeal due to possible conflicts of interest, it would still require the agreement of four Justices to affirm or deny.  It would not be a majority of the remaining.

Furthermore, money from the Madigan controlled Democratic Party of Illinois fund has heavily supported at least four of the seven current Justices in their bids to attain seats or for retention in the Illinois Supreme Court.  Justices increasingly need financial backing from parties and groups to secure judicial seats or retention in Illinois. 

Sadly, the partisan elective process, which becomes addictive to monetary donation(s), now occurs in Illinois and happens in other states as well.  Since Obama has left his home state and since the ruling of Citizens United, the result has been an exponential delivery of exorbitant amounts of money to potential state Supreme Court Justices during their candidacies in judicial elections.  Political PAC’s and “dark money” have sought and found new recipients, and they are no longer the least influenced branches of government.

One political lobbyist put the entire plan on the multi-state level quite simply: “We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators.”  In other words, if you build it, they will come; but if you build possible influence, they will buy it.

And, in Illinois, if money comes to an aspiring Justice with strings attached, the strings web out in all directions to all political persuasions, especially in the Pension Theft appeal:  right wing PAC groups, labor unions, educational groups, attorney groups, big business, etc. 

Please excuse a Christmas metaphor, but in Illinois each of our current Justices carry the ponderous weight of possible appearance of monetary influence approaching the upcoming Pension Theft appeal like Dickens’ Marley struggling with the lumbering chains of past political indiscretions. 

In fact, connecting the political and accompanying monetary dots in Illinois politics is quite enough to drive anyone to distraction – or more likely cynicism.  For example, many will call for Justice Ann Burke to recuse herself in the upcoming pension theft appeal.  After all, Justice Burke has already declared her position regarding the question of pension benefits in her dissenting point of view in Kanerva v. Weems.  While the decision (6-1) found that the addition of health care was a benefit that could not be diminished or impaired, Justice Burke argued that such a decision was crafted out of “whole cloth,” and only what was promised (salary, etc.) at the time of employment would be protected by Article XIII, Section 5 of the Illinois Constitution.

Moreover, Justice Burke raised over $1.8 million in her 2008 campaign to ward off a possible challenger.  According to Follow The Money, groups in support of the current Pension Theft Bill, like the Prtizkers and other business-minded leaders, supplied nearly $1 million in her support.  On the other hand, labor unions also provided another $55,000.  Candidate Committees, like Madigan’s Democratic Party of Illinois, also provided a tidy sum. 

Augmenting this cradle of strings, Justice Burke’s husband, Alderman Edmund Burke is a consistent contributor to the architect “put on earth” to pass Pension “Reform” – ex-Governor Patrick Quinn.  After loaning Quinn over $200,000 and supplying the candidate Quinn with another $50,000, the Burkes’ daughter Jennifer was appointed by Quinn to serve in a $117,000 position on the Illinois Pollution Control Board in 2011.  (http://articles.chicagotribune.com/2011-07-27/news/chi-quinn-appoints-burkes-daughter-to-117000ayear-post-20110727_1_quinn-spokeswoman-annie-thompson-pat-quinn-ed-burke).

Unfortunately, in the political realm of Illinois, Justice Burke remains no more indebted to conflicting and influential backers than most if not all of the other Illinois Justices. 

In just this last election cycle, voters witnessed an expensive battle in the fifth district race for the retention of Illinois Supreme Court Justice Lloyd Karmeier.  In a combat tailored in the microcosmic result of a Citizen United decision, powerful factions of attorney groups faced off with even larger groups of “dark money” supplied by groups like the Chamber of Commerce to retain the Justice.  The amount of money fueling this specific race for judicial retention reached unheard of highs - nearly $2 million – after receiving nearly $4 million in pro business interests earlier (Judgepedia.org).  In fact, according to Politico.com, “during 1990’s, costs for Supreme Court races hovered between $20 million and $30 million per election; now, it’s routine for the annual haul to exceed $55 million” (http://www.politico.com/magazine/story/2014/09/elected-judges-110397.html - .VJUQT50EAA).   

Influence?  In Karmeier’s election for retention, organized trial lawyer groups were doggedly fighting to defeat a judge who had overpowered them in 2004 by taking untold donations from Philip Morris through various front groups and PACs like the Chamber of Commerce, and then refused to recuse himself during later appeals to the highest court in an earlier suit against the cigarette manufacturers claim of “lite” as “harmless.”  The Illinois Supreme Court – and Lloyd Karmeier – overturned the earlier decision and found in favor of the cigarette manufacturer.

Robert Clifford of Clifford Law Offices was part of the trial lawyers’ consortium to defeat Karmeier’s retention.  He expressed his concerns in a recent Tribune editorial regarding the influences of big business in Illinois judicial retentions and elections he has historically witnessed.  “I readily joined this battle because consumers’ rights are in jeopardy every time Karmeier votes on an issue that could affect the interests of those who helped to elect him…Insurance companies and large corporations have funneled money through organizations such as the U.S Chamber of Commerce so that specific identities of the donors remain anonymous.  Voters can’t find out who funneled money to the organizations for those purposes” (http://www.chicagotribune.com/news/opinion/commentary/ct-dark-money-judicial-elections-perspec-1211-20141210-story.html ).

Although caught between the various influences and political/monetary pressures of those powerful entities who support or discourage pension benefits, some Illinois Supreme Court Justices assert they’re ideologically untouchable.  The current Chief Justice of the Illinois Supreme Court Rita Garman expressed her own disbelief in the power of group(s) or PAC donations to influence legal decisions in a Chicago Lawyer article heralding her as “Person of the Year” in 2013. 

Commenting positively on a more meritorious method for judicial selection over an unsavory elective process inundated in cash, Justice Garman nevertheless felt that the independence of the judicial branch in Illinois was still functional and neutral.  “I think politics plays no role in any of the issues we have before us…If a legislative challenge goes up or down, (it’s) based upon whether it meets the standards of our constitution.  And I think our court will analyze it that way. I know that time to time there is speculation about the party split on the court.  That is not an issue with the court” ( .http://www.chicagolawyermagazine.com/Archives/2013/12/Person-of-the-Year-Rita-Garman.aspx”).

Of course, the particulars of the appealed bill PA 98-0599 remain wholly opposed to Justice Garman’s more erudite imagination of immunity from political pressure or distance from big business.  The removal of the Judicial Retirement System (JRS) from the proceedings in the bill and its later passage as PA98-0599 appears intentionally and strategically designed to influence the Justices by avoiding any immediate or direct consequences for those who would deliberate.    If included, the Justices' awareness of their retirement program's less-than-30% funding as well their initial salaries of over $200,000  would probably weigh as heavily in the decision as their future backing by untold parties.

As one might expect, Speaker Madigan, who predicts a 4-3 win for his daughter’s "sovereign powers argument," spins all of this quite differently.  “The intent was to eliminate the possibility of judicial conflict during the adjudication of this matter through the court system…”

Senator Bill Brady identified a simple contradiction in the Speaker’s argument: "If it’s a conflict for the judges to be in the pension bill, then it’s a conflict they’re taking money from the groups they’re making rulings about” (http://www.suntimes.com/news/metro/24614346-418/story.html).

In other states, or at least 30 of them, voters have adopted merit selection to pick judges at various levels.  In most cases, non-partisan screening commissions conduct interviews, review deliberation records, and recommend qualified finalists to the state governor, who then makes an appointment.  Retentions are often dealt with by simple majority elections. 

Unfortunately, in at least 21 other states like Illinois, judges are elected in the same political process as we’ve come to expect for our federal congress people after Citizens United or McCutcheon v. Federal Election Commission. 

Despite Chief Justice Garman’s proffering of independence, a retired Supreme Court Justice from West Virginia (also an elective judiciary) stated: “It’s pretty hard in big money races not to take care of your friends…It’s very hard not to dance with the one who brung you” (http://www.politico.com/magazine/story/2014/09/elected-judges-110397.html).

How deeply Speaker Madigan resides in the darkness of Illinois’ Justices robes is hard to say; however, he certainly will not be alone.  Pension supporters like AFCSME and WeAreOne will be there, as will Sidley Austin, the Civic Committee and Winston-Strawn.  We might even catch the shadows of twin brothers with an oily nature to them. 

And the Justices?  Caught between many voices and even more money from self-interested backers, we can perhaps only hope they'll be controlled and guided the deep ruts of earlier (and recent) Constitutional decisions to guide them as they hear Lisa’s appeal – an attempt to break contractual promises made by the state because the state has the power to do so?

There will be no recusing by any of the Justices, for in the political circus called Illinois none are untouched.