"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. 

IRTA: Live Stream of Oral Arguments on March 11th at 2:30 p.m.

From IRTA: Live Stream of Oral Arguments Before the IL Supreme Court

The Supreme Court will be hearing oral arguments on March 11th at 2:30 PM here in Springfield.  

The Supreme Court has already made one decision, throwing out 10 arguments presented by the Attorney General's office.  Their decision to do this not only allowed oral arguments to begin sooner, it also saved our legal team time, and us money, because they will not have to focus on defending against these 10 frivolous amicus briefs. The court reviewed those proposed briefs, found them to be very duplicative of what the attorney general argued and said 'we don't need these; let's keep moving'.

To watch the live stream video of the oral arguments in front of the Supreme Court you can click on the following link or visit the IRTA website.

New.livestream.com/blueroomstream/events/3845430

From Glen Brown: Pension Protection Clause Does Not Compromise the State's Sovereignity

Glen Brown has been assiduously reviewing the arguments and positions of the consolidated legal staffs representing We Are One, the IRTA, etc., in their response(s) to Lisa Madigan’s Police Powers/ affirmative defense originally submitted before the Illinois Supreme Court in January 12 of 2015.

The result is an attentive compilation of argumentative and legal positions as presented by these proponents of the Pension Protection Clause.  On March 11, counselors DiVito and Shapiro will make oral arguments before the Court.

The entire brief presented to the ILSC is available at

http://www.state.il.us/court/SupremeCourt/SpecialMatters/2015/118585_MOT16.pdf

If you have not done so, I urge you to take the time to read Glen Brown’s careful examinations of oral arguments scheduled for March 11^th, the significant precedents to this suit, the questions of terminology like “diminished or impaired,” etc.  The entire collection is available at his blog site:

http://teacherpoetmusicianglenbrown.blogspot.com/

"The Pension Protection Clause Does Not Compromise the State’s Sovereignty"

“…The Federal Constitution Does Not Prohibit a State From Limiting Its Own Powers Through Its Constitution.

“The issue before this Court is the extent to which the Pension Protection Clause of the Illinois Constitution limits the power of the General Assembly. There is no federal question. Nevertheless, the defendants argue that the ‘reserved powers doctrine’ of the Contract Clause in the federal Constitution prohibits a state from limiting its own powers under its own law. (Def. Br. at 40-45.) The defendants' theory is unprecedented and contrary to basic principles of federalism.

“The reserved powers doctrine merely holds that the federal Contract Clause will not lock a state into a contract that surrenders one of several specific sovereign powers. U.S. Trust Co. of New York v. New Jersey, 431 U.S. I, 23 (1977). The doctrine does not require states to maintain the maximum sovereign powers permitted by the federal Constitution. None of the cases cited by the defendants supports that proposition. In fact, the United States Supreme Court has explicitly invited states to limit their sovereign powers if they so choose. Compare Kelo v. City of New London, Conn., 545 U.S. 469, 489 (2005) (‘We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.

“Indeed, many States already impose 'public use' requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes’) (footnote omitted) with U.S. Trust Co. of New York, 431 U.S. at 23-24 (recognizing the power of eminent domain as an essential sovereign power).

“The Illinois Appellate Court has likewise recognized that ‘the State is free as a matter of its own law to impose greater restrictions on the police power than those held to be necessary upon federal constitutional standards.’ Parkway Bank & Trust Co. v. City of Darien, 43 III. App. 3d 400, 406 (1976).

“The defendants' reserved powers argument confuses contracts and statutes with constitutions. The reserved powers doctrine addresses the surrender of sovereign powers by contract or statute. See, e.g., U.S. Trust Co. of New York, 431 U.S. at 23-24. This Court, however, is being asked to interpret a constitutional provision. There is no reserved power exception to the specific limits which a state's constitution places on that state's legislature. See, e.g., O'Brien, 219 III. 2d at 100 (‘the General Assembly cannot enact legislation that conflicts with specific provisions of the constitution’); Flushing Natl. Bank v. Municipal Assistance Corp. for City of N.Y., 40 N.Y.2d 731, 740 (N.Y. 1976) (‘the police power which may override statutes is not a higher law which transcends Constitutions as well’).

“The irrelevance of the reserved power doctrine to the interpretation of the Pension Protection Clause is well illustrated by Flushing National Bank, a case arising from the State of New York's efforts in the 1970s to reduce New York City's crushing municipal debt.

“At issue in Flushing National Bank was a law preventing certain short-term municipal noteholders from enforcing their notes in court for a period of three years. Id. at 733. The New York State Constitution contained a clause requiring the City to pledge its ‘faith and credit’ to all debt obligations. The court interpreted the faith and credit clause as an unambiguous commitment, without exception, to pay the notes as they came due—a ‘super contract,’ as the defendants would describe it. Id. at 734-36.

“The New York Court of Appeals held that regardless of the city's ^.fiscal distress and the legislature's claimed ‘police powers,’ the faith and credit clause flatly prohibited the moratorium law. Id. The court further held that the legislature's violation of this constitutional provision could ‘not be justified by fugitive recourse to the police power of the State or to any other constitutional power to displace inconvenient but intentionally protective constitutional limitations.’ Id. at 736.         

“Of particular relevance to the defendants' reserved powers argument, the court explicitly declined to apply federal Contract Clause jurisprudence because ‘Wederal constitutional provisions, especially the impairment clause, cast little light on the State constitutional issues in this case.’ Id. at 740. In other words, the state's constitution, not a contract, limited the legislature's power, so the question of reserved powers was beside the point.

“Here, just as in Flushing National Bank, a constitution, not a contract or a statute, prohibits the legislature from avoiding a financial obligation. Just as in Flushing National Bank, the defendants invoke police powers and a purported fiscal emergency as justification for doing precisely what the State Constitution prohibits. Just as in Flushing National Bank, the federal Contract Clause and the reserved power doctrine are beside the point. Regardless of whether a legislature can surrender its sovereign powers by contract or statute, no reserved sovereign power allows a state legislature to sidestep the plain prohibitions set out in its own constitution…”

from Brief of ISEA RSEA Heaton and Harrison Plaintiffs-Appellees

From Glen Brown: A Review of Precedents Before the Illinois Supreme Court

From Glen Brown: Review of Precedents in Brief  to ILSC, March 3, 2015

“[The Illinois Supreme] Court has rejected similar attempts to justify constitutional violations on the basis of financial necessity”

“…The defendants' attempt to justify the Act [Senate Bill 1] also is foreclosed by the fundamental principle that the ‘[Illinois] General Assembly cannot enact legislation that conflicts with specific provisions of the constitution, unless the constitution specifically grants the legislature that authority.’ O'Brien v. White, 219 III. 2d 86, 100 (2006).

“In other words, the General Assembly can have no implied power to do what the Constitution expressly prohibits. Rather, ‘limitations written into the Constitution are restrictions on legislative power.’ Client Follow-Up Co. v. Hynes, 75 III. 2d 208, 215 (1979).

“Put another way, ‘the constitution is not regarded as a grant of powers to the legislature but is a limitation upon its authority; the legislature may enact any legislation not expressly prohibited by the constitution.’ People ex rel. Chicago Bar Ass 'n v. State Bd. of Elections, 136 Ill. 2d 513, 525 (1990). Accordingly, an exercise of the police power ‘must not conflict with the Constitution.’ City of Belleville v. St. Clair Cnty. TPk. Co., 234 Ill. 428, 437 (1908).

“This Court's precedents make clear that no crisis can give the political branches of government the power to violate the Constitution. This principle has been applied specifically to enforce constitutional prohibitions against diminishing compensation owed to public servants, notwithstanding arguments based upon fiscal exigencies. See Jorgensen, 211 III. 2d at 316 (‘No principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem’); People ex rel. Lyle v. City of Chicago, 360 III. 25, 29 (1935) (‘Neither the Legislature nor any executive or judicial officer may disregard the provisions of the Constitution even in case of a great emergency’).

“As the appellate court explained in People ex rel. Northrup v. City Council of City of Chicago, 308 Ill. App. 284, 289 (1941), ‘an emergency cannot be created by the facts and used as a means of construction of a constitutional provision which has made no reference to any emergency by its terms.’

“As demonstrated by Lyle and Northrup, this principle was consistently applied by Illinois courts even during the Great Depression. The defendants attempt to distinguish Jorgensen and Lyle on the basis that they arose under separate constitutional provisions and implicated the separation of powers. (Def. Br. at 39-40.) The municipal judges in Lyle based their claims upon a provision of the 1870 Constitution that protected the salaries of municipal officers, not the Judicial Article. See 360 Ill. at 27-29 (the relators, municipal judges, were ‘municipal officers’). Thus, Lyle did not rest upon separation of powers principles. This fact also defeats the defendants' argument that Lyle drew a distinction between contract rights and judicial salaries. (Def. Br. at 39-40.)

“Jorgensen did raise important concerns about the separation of powers, but the defendants' attempt to distinguish that case cuts too thin. Jorgensen was based on the ‘clear and unconditional’ terms of Article VI, § 14 of the Constitution (see 211 Ill. 2d at 305), which, like the Pension Protection Clause, guarantees that certain compensation shall not be ‘diminished.’

“Jorgensen therefore is instructive here. Lyle and Northrup likewise were based upon ‘plain and unequivocal’ constitutional provisions that ‘contained nothing that expressly or impliedly authorized deviation from their terms . . . .’ Jorgensen, 211 111. 2d at 304 (discussing Lyle); Northrup, 308 Ill. App. at 289 (basing its holding on the fact that ‘[t]here are no words’ in the applicable constitutional guarantee of compensation ‘which make any reference, either directly or by implication, to the subject of an emergency’). Those cases support the plaintiffs' reliance here upon the equally plain and unequivocal language of the Pension Protection Clause.

“The defendants also invoke the adage that the Constitution is not a suicide pact. (Def. Br. at 43.) Setting aside whether such hyperbolic rhetoric is even appropriate under the circumstances presented here, this Court has consistently enforced the Illinois Constitution despite arguments premised on dire fiscal conditions. Even in the midst of the Civil War, this Court rejected the argument that adherence to a State constitutional provision would leave the State with ‘no adequate provision remaining to meet the ordinary expenses of the State government.’ People ex rel. Merchants' Say., Loan & Trust Co. of Chicago v. Auditor of Pub. Accounts, 30 Ill. 434, 445 (1863).

“This [Supreme] Court replied that the General Assembly was ‘clothed with ample powers to provide for all financial difficulties.’ Id. No financial difficulties, the Court explained, could justify violating the Constitution. Id. at 444. Rather, our ‘safety, in the midst of perils, is in a strict observance of the constitution—this is the bulwark to shield us from aggressions.’ Id…”

from Brief of ISEA RSEA Heaton and Harrison Plaintiffs-Appellees