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A look ahead

Tuesday, May 14, 2013

* Jim Nowlan writes about the judicial prospects for pension reform

[House Speaker Michael Madigan] has, rather brazenly, declared that he believes there are four votes on the state high court of seven members to declare the bill constitutional. There are four Democrats and three Republicans on the court.

The Illinois Supreme Court has always been considered a “political court,” capable of responding to political realities. Its members are elected in partisan contests. One member is the wife of a prominent Chicago alderman.

And Chief Justice Thomas Kilbride of Rock Island was lifted from a small general law practice to the high court in 2000 when Speaker Madigan, who is also the state Democratic Party chair, basically took over Kilbride’s lackluster campaign and funneled almost a million dollars into it to surprise the favored GOP candidate in a narrow win.

So this “armchair constitutional lawyer” predicts, going way out on a limb, that a bill closer to Madigan than Cullerton will pass sometime this year, and that the state Supreme Court will swallow hard and declare the underlying defined benefit unimpaired, thus constitutional.

Yeah, well, Kilbride was also heavily backed by unions, particularly in his tough 2010 reelection bid. I’m not so sure that he’ll jettison them just to please MJM on one ruling.

* No matter how it plays out in the General Assembly, the courts will be the next big chapter in the pension reform war. Kirk Jenkins penned a remarkable blog post recently which looked at the Kilbride Court’s record. For instance, most appellate decisions have been overturned in all but one district

Nearly half of the Kilbride Court’s civil docket — 43.8% — has come from Chicago’s First District. The First hasn’t fared well; five of the six Divisions have a reversal rate of 60% or more, topping out with an 85.7% reversal rate in the Division Two. The First District has had a particularly rough 2012, with a 76.5% reversal rate. The Fifth District, which includes Madison and St. Clair Counties, both sharply criticized as pro-plaintiff environments for tort cases in recent years by the American Tort Reform Foundation, has seen 80% of its civil decisions reversed by the Supreme Court. Two other Districts are similar: two thirds of the decisions reviewed from the Second and Third Districts have been reversed.

But the anomaly comes from the Fourth District, which centers on the state capital of Springfield. The Court has heard eight civil cases from the Fourth District, four involving government parties. In six of those eight cases (including three government wins) the Supreme Court has affirmed: an impressive 75% affirmance rate.

* Jenkins also looked at the voting patterns. It’s pretty complicated and involved and you should definitely go read the whole thing to get the entire flavor, but here is his summation….

Our analysis of the dynamics of the Kilbride Court just past its second anniversary suggests several tentative lessons for counsel: (1) if you prevailed at the Appellate Court, the odds your decision will be reversed are roughly two in three (unless you’re coming from the Fourth District); (2) the Court’s ultimate decision is quite likely to be unanimous; and (3) if the decision is not unanimous, the Justices most likely to be in the majority are Justices Thomas, Garman, Karmeier and either Burke or Theis.

That suggests there might be a working GOP majority if the final decision is split. We’ll see.

…Adding… Justice Karmeier won a traditionally Democratic district last time around and is up for reelection in 2014. If politics plays a role here, then Karmeier may shy away from whacking public employees. Take a look at his district, which is pretty much all of the Metro East and deep southern Illinois. The Democrats will be gunning for his seat, so I’m not certain that he’ll want to give them ammo with a pro-Madigan decision, no matter how ironic that may sound. It’s about winning elections, not policy.

Also, Rita Garman represents both Champaign and McLean counties, which have very large universities. Something to keep in mind.

- Posted by Rich Miller        


45 Comments
  1. - 47th Ward - Tuesday, May 14, 13 @ 11:05 am:

    ===That suggests there might be a working GOP majority if the final decision is split. We’ll see.===

    As soon as Madigan mentioned the four SC votes this scenario has been in my head, that the GOP justices will be key to affirming the Madigan bill. Can anyone imagine Thomas, Karmeier and Garman voting for the unions?

    We shall see indeed.


  2. - Anonymous - Tuesday, May 14, 13 @ 11:10 am:

    Does Madigan controlmembers of the Illinois Supreme Court? For the sake of Democracy and faith in government in Illinois, lets hope not. Trust in Government is at an all time low in Illinois. Hope that lack of trust does not spread to the high court!


  3. - Just Me - Tuesday, May 14, 13 @ 11:15 am:

    If the Illinois Supreme Court can rule that this legislative map is constitutional, as written by Speaker Madigan, they can rule that any pension plan, as written by Speaker Madigan, is also constitutional.


  4. - Cassiopeia - Tuesday, May 14, 13 @ 11:15 am:

    I think the justices understand that they will be forever remembered by this one vote. It will be easier for them to go with upholding the simple and direct language of the constitution rather than to twist themselves into accepting the argument of financial calamity, especially because the pension systems are at nearly the same level as funding today as when the latest constitution was written with the pension clause.


  5. - Rich Miller - Tuesday, May 14, 13 @ 11:19 am:

    ===If the Illinois Supreme Court can rule that this legislative map is constitutional===

    So did the US Supreme Court.


  6. - Katiedid - Tuesday, May 14, 13 @ 11:20 am:

    I think as soon as he made that statement, there was no way for the Court to have a “clean” ruling, although it was always going to be difficult. If they rule for Madigan’s bill, everyone will now just use that as “proof” that the justices are in his pocket. And if they rule against his proposal, the line will be that they are only doing it to prove their independence (and that they’re only doing it to protect their own pensions).


  7. - Rich Miller - Tuesday, May 14, 13 @ 11:23 am:

    ===and that they’re only doing it to protect their own pensions===

    Except they’re not in either bill.


  8. - anon - Tuesday, May 14, 13 @ 11:23 am:

    The Jenkins analysis is interesting although the sample size is probably too small to really show anything meaningful. AND his analysis is based on cases taken under the Supreme Court’s discretionary review. As he acknowledges, the Court often reverses in such cases. However, there is a good chance that the court challenge would arise under Rule 302 which provides for automatic direct review to the Supreme Court when a statute is held to be unconstitutional by a lower court. I doubt the same reversal rates obtain in those cases.


  9. - Steve Brown - Tuesday, May 14, 13 @ 11:29 am:

    Always refreshing to watch someone open their mouth and prove how little the really know what is happening outside the “think tank”.

    The Speaker did not brazenly declare anything. He made a prediction and then quickly volunteered he had spoken to any member of the court.

    Sometimes Nowlan need to think about using the delete button before sharing his wisdom.

    I guess the reversal rate study would be worthwhile if we knew whether the trial court ws siding with defendents or plantiffs…perhaps this could be summer reading


  10. - PublicServant - Tuesday, May 14, 13 @ 11:30 am:

    The US Supreme Court will also be in play regarding the US Constitution’s Contracts Clause.


  11. - Six Degrees of Separation - Tuesday, May 14, 13 @ 11:30 am:

    Except they’re not in either bill.

    Except a precedent with a favorable ruling on reducing pension guarantees will be set, with the most direct bearing and nexis on the issue, that they might find problematic ruling against if/when the snowball started rolling their way.


  12. - Rich Miller - Tuesday, May 14, 13 @ 11:34 am:

    ===if/when the snowball started rolling their way. ===

    That’s always possible, perhaps even probable.

    But the Constitution gives judges extra protection, and legislators tend to avoid pushing around that branch, so action is not terribly likely.


  13. - Six Degrees of Separation - Tuesday, May 14, 13 @ 11:34 am:

    quickly volunteered he had spoken to any member of the court.

    About that delete button…:-)


  14. - Katiedid - Tuesday, May 14, 13 @ 11:47 am:

    ==and they’re not in either bill==

    I know; I just meant that there will be an argument if they rule against the proposal that they’re only doing it because they’re next. I don’t think it’s an accurate argument (for exactly the reasons you mention), but I do think it will be made.


  15. - anon - Tuesday, May 14, 13 @ 11:48 am:

    Assuming Mr. Nolan does not have an appellate practice. Wouldn’t enjoy having to appear in front of justices whom you publicly trashed for being kneejerk political hacks.


  16. - dang - Tuesday, May 14, 13 @ 11:51 am:

    “it is about winning elections and not policy” herein lies the problem with our country. Human ego is an ugly thing.


  17. - Bush Twins - Tuesday, May 14, 13 @ 11:55 am:

    Karmeier is not up for reelection. He is up for retention– huge difference. And, I don’t see dems gunning for the seat because it isn’t really up for grabs. Theoretically there could be a “vote no on Karmeier” campaign but, given the way the “Vote no on Kilbide” campaign flopped, I doubt we will see that. Finally, I don’t see this court as being too politically motivated. Most of the commenters on here are used to seeing pure politics in the general assembly, but I choose to believe the SCOTOI justices vote their conscience- although one’s conscience is admittedly shaped by one’s view of the world.


  18. - Anon. - Tuesday, May 14, 13 @ 11:58 am:

    ==But the Constitution gives judges extra protection,==

    But only during their term in office, not when they are retired. And the Maag case is extremely important, because the General Assembly did take the free health insurance from retired judges (including Maag himself, of course), and if they hold that act was unconstitutional, all bets are off. Even the Cullerton proposals offer no consideration for reducing pensions.


  19. - PublicServant - Tuesday, May 14, 13 @ 12:02 pm:

    I really do get what you’re saying Rich, but even if the SSC rules pension diminishment constitutional under the state’s police powers wouldn’t that only mean that the least onerous diminishment would be considered and wouldn’t that mean the Cullerton bill?


  20. - Bush Twins - Tuesday, May 14, 13 @ 12:19 pm:

    BTW, Nowlan sounds and writes like a guy who feels like he has been walked over by Madigan, and simply has an axe to grind. Armchair constitutional lawyers are worth what they are paid.


  21. - RNUG - Tuesday, May 14, 13 @ 12:27 pm:

    Anon. @ 11:58 am:

    Technically, a second “consideration” in Cullerton’s SB2404 is the funding guarantee… and it at least reads better than the Madigan SB0001 guarantee, granting an individual right of sorts to sue.

    We can agree it may not be worth the paper it is written on, but it is “something” and the courts may find it “valuable”.


  22. - Bobbysox - Tuesday, May 14, 13 @ 12:39 pm:

    There is one other factor to consider, though quite crazy to think about. What if as Illinois Supreme Court Justices they decide the issue on the merits, regardless of political implications? Are judges allowed to do that?


  23. - Norseman - Tuesday, May 14, 13 @ 12:41 pm:

    One signal of how the SC will rule is what happens with the SB 1313 Maag health insurance lawsuit. If they declare 1313 unconstitutional, then it would be hard to believe that they would rule the Madigan reduction bill to be constitutional. Of course, the Cullerton bill would become moot.


  24. - One of Three Puppets - Tuesday, May 14, 13 @ 12:44 pm:

    Garman also has Sangamon. That trumps McLean and Champaign.


  25. - Norseman - Tuesday, May 14, 13 @ 12:49 pm:

    === Garman also has Sangamon. That trumps McLean and Champaign. ===

    How so? I would think that Sangamon the home of tons of state employees would be a bigger argument for voting against the reduction.


  26. - RNUG - Tuesday, May 14, 13 @ 12:57 pm:

    Norseman @ 12:41 pm:

    Maybe not. I don’t expect the consolidated “Maag” suit to be decided on the pension clause. I’ve consistently said I expected it to be decided under contract law since the health insurance “promise” was in contract like terms.

    “If the employee works 20 years, then health insurance upon retirement” Sure seems like an offer conditioned on an acceptance, which tends to be the definition of a contract.

    And remember, the Appellate Court recently voided the pension clause finding in the Marconi v Joliet case and sent it back to the trial court to be decided under contract law.

    If they find it was a contract, that would let the IL SC duck the pension clause issue until a SB0001 or SB2404 challenge hits the docket.


  27. - LincolnLounger - Tuesday, May 14, 13 @ 1:14 pm:

    Frankly, I find the Speaker’s speculation about 4 votes to be chilling. That’s probably exactly what he intended.


  28. - retired and fed up - Tuesday, May 14, 13 @ 1:18 pm:

    In the Marocni case the pension clause was not voided. Whether or not something is constitutional is only considered if no other available option exists. Therefore, the lower court was instructed to see if a remedy existed under contract.


  29. - RNUG - Tuesday, May 14, 13 @ 1:22 pm:

    retired and fed up @ 1:18 pm:

    You are correct. I phrased it poorly, since I just meant the lower court ruling was voided.


  30. - Pot calling kettle - Tuesday, May 14, 13 @ 1:52 pm:

    ==Frankly, I find the Speaker’s speculation about 4 votes to be chilling. That’s probably exactly what he intended. ==

    What else do you think he would say? If he did not think he would have four votes, he would not run the bill, or he would run the bill and say he thought he had four. Do you think he could pass a bill if he told his caucus he thought it would be tossed out by the Supreme Court?


  31. - Rich Miller - Tuesday, May 14, 13 @ 1:54 pm:

    ===I doubt the same reversal rates obtain in those cases. ===

    According to Mr. Jenkins, “the Court’s reversal rate 2003-2012 on appeals taken directly from Circuit Courts (this can happen either because a statute has been struck down, or an appeal is transferred up, like Kanerva) is 68.2%”


  32. - Curmudgeon - Tuesday, May 14, 13 @ 2:05 pm:

    Does Madigan control the State Supreme Court? Don’t be naive. Damage caps were toast when the Speaker supported Kilbride. That way he could let his members vote for caps, knowing the Court would strike them down (in a poorly written and poorly reasoned opinion, by the way). He would never cross the trial lawyers! That’s why there will never be merit selection: lawyers want the appointments and lower court Judges want promotions; not wise to anger the appointing authorities!


  33. - Anon. - Tuesday, May 14, 13 @ 2:42 pm:

    ==I’ve consistently said I expected it to be decided under contract law since the health insurance “promise” was in contract like terms.

    “If the employee works 20 years, then health insurance upon retirement” Sure seems like an offer conditioned on an acceptance, which tends to be the definition of a contract.==

    I agree. In his holding in Maag, Judge Narduli rejected the holdings of the Hawaii and Alaska supreme courts that said health insurance was covered by those states’ pension clauses, and chose to follow a New York case that said otherwise. However, there is a more recent New York case that agreed with the one Narduli followed that the pension clause didn’t apply, but held that a statute that gave free health insurance after 10 years service was a unilateral contract that was accepted by the employees’ performance of 10 years service, and was binding on the state.


  34. - Keyrock - Tuesday, May 14, 13 @ 2:55 pm:

    The reversal rates in most cases won’t tell us anything about the pension case(s). The Supreme Court exercises its discretion to hear most cases, and usually chooses to do so when it has a strong suspicion that a case may have been wrongly decided.

    Some cases, like the pension case(s), are so important that the Supreme Court has to take them. It won’t matter where they are filed — and unless a lower court issues a very strong opinion, what the lower court says.

    The Supreme Court will take this case and decide it (either on (a) the merits, or (b) politics).


  35. - Skirmisher - Tuesday, May 14, 13 @ 2:58 pm:

    I actually believe that the Republican members of the SC will be more impressed by the sanctity of a contract than they will be by the arguments of the Civic Club and its legislative minions. I am probably naive in thinking this. However, turning a judicial back to the validity of a contract and in the process giving the Executive a precedent to renege on state indebtedness would be a tough nut for anyone with truly conservative views on the law.


  36. - PublicServant - Tuesday, May 14, 13 @ 4:12 pm:

    Article 1, Section 10, Clause 1 of the U.S. Constitution

    No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and
    Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.


  37. - Bush Twins - Tuesday, May 14, 13 @ 4:23 pm:

    This discussion of SCOI justices being beholden to political benefactors (real or imagined) is ludicrous. Those justices are interested in doing the right thing, period. Rich, Justice Garman has been a judge since, I believe, the 70s (or at least 80s). She is fully vested and more. Her current term expires in 7 years. You really think she will be impacted by politics?


  38. - Anonymous - Tuesday, May 14, 13 @ 4:28 pm:

    I find Madigan’s comment about having four votes chilling too. I think most of the SC justices will too. I also predict the exclusion of the JRS from the legislation will be viewed by the justices negatively.


  39. - Norseman - Tuesday, May 14, 13 @ 4:50 pm:

    Bush Twins, we’ll have to agree to disagree on whether it’s ludicrous that the SC justices would not take politics into consideration. I hope and pray that this would not be the case during any consideration of the pension reduction bill.


  40. - Bush Twins - Tuesday, May 14, 13 @ 5:03 pm:

    Re Madigan’s “chilling” prediction– what do you expect him to say? That he expects his signature piece of legislation for the term will be struck down? Oy.


  41. - Norseman - Tuesday, May 14, 13 @ 5:19 pm:

    If any one of 117 other reps said it I’d consider it to be rhetoric. With Madigan, not so much.

    Perhaps Rich could do a question of the day on whether folks believe that judges can be influenced by politics.


  42. - Madison - Tuesday, May 14, 13 @ 6:04 pm:

    Public Servant I pray that forthe benefit of ordinary citizens you are wrong. Justice has a last bastion of integrity in the state, and I hope these ISC justices realize that. I also hope they realize that they’re next on Madigan’s list.


  43. - foster brooks - Tuesday, May 14, 13 @ 7:31 pm:

    I just had a silver shovel flashback lol


  44. - jake - Tuesday, May 14, 13 @ 9:54 pm:

    Gee, if the politics of the court decision are difficult, how about deciding the case on its legal merits? I realize that is a novel concept but…


  45. - jake - Tuesday, May 14, 13 @ 10:11 pm:

    More seriously, quite a few Democrats voted “no”. I don’t think this is one where the Speaker will draw the line and try to punish anybody, either in his caucus or on the court. Nowlan was writing for the Reboot web site, and he was just tossing some Madigan conspiracy red meat to the right wing.


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