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Re: Madigan and the courts

Friday, Dec 6, 2013

* So many commenters yesterday bemoaned their belief that House Speaker Michael Madigan “owns” the Illinois Supreme Court that prominent pension issue commenter RNUG finally weighed in

I realize this is Illinois and a lot of you think the fix is in, but stop and think it through a bit.

Once you become an [Illinois Supreme Court] justice, the only place left to go up is the federal system and, unless you’re in the running for SCOTUS, it’s pretty much a step down in terms of power and prestige. The usual path is to reach ISC, hang around to get your turn at Chief Justice, then, if you’re ready to go, retire. Otherwise you hang around some more until the workload gets to be too much.

MJM may have helped put a judge on the ISC initially, and maybe the judge owes MJM, but MJM can’t directly remove a judge from the ISC. Once they are there, they are there for 10 years at a time, and their re-election is a simple “Shall x be retained?” question. It’s not the same as running a campaign for re-election. Effectively speaking, once you make it, you are there for life or until you choose to step down. For the first time in their political life, a judge on the ISC is pretty much answerable to no one.

Yes, a judge could harbor hopes of retiring from the ISC and be “of consul” to any number of prestigious law firms, and in that case, MJM’s backing might help. But there’s no guarantee that such help would be needed. Big law firms like to have people like former Governors, Senators and Supreme Court Justices on their letterhead, and pay big money for that privilege.

Practically speaking, once they reach that level, an ISC Justice is free to do whatever they want on court decisions.

The paranoia out there is really, truly intense. Some of y’all need to tone it down. Way down.

- Posted by Rich Miller        


85 Comments
  1. - The Captain - Friday, Dec 6, 13 @ 11:08 am:

    You’d be paranoid too if everyone was out to get you.


  2. - Chris - Friday, Dec 6, 13 @ 11:10 am:

    Well, Rich, the fact that MJM is getting his daughter into the governor’s mansion is proof of his power.

    Oh, wait…


  3. - Obamas Puppy - Friday, Dec 6, 13 @ 11:12 am:

    When he makes statements in absolute terms it is hard to ignore.


  4. - Decaf Coffee Party - Friday, Dec 6, 13 @ 11:14 am:

    Well, I have my tin foil hat on and was wondering exactly who the speaktator was messaging with his strange self-congratulatory remarks taking complete ownership of SB 1 during the signing party.


  5. - In the Middle - Friday, Dec 6, 13 @ 11:15 am:

    That’s exactly spot on.

    “Oh, but you know, Madigan’s really powerful…” Well, yeah, but tell me specifically what power he has over the Supremes. It’s laughable to think he has something any of them need.


  6. - Oswego Willy - Friday, Dec 6, 13 @ 11:15 am:

    Good on you - RNUG -, you hit the right tone, and made the reasonable argument to the most unreasonable.

    Sometimes, it’s not “Tim Foil Hat” time.

    Thanks for the Post Rich, claiming 1/3 of Illinois Government is willing to ignore their role so blatantly has no credibility in making a case for anything you hope to advocate.

    Glad this was addressed.


  7. - anonymouse - Friday, Dec 6, 13 @ 11:17 am:

    Not paranoid Rich, but I only trust myself and you. Right now, not sure about you!(HoHo)


  8. - Anonymous - Friday, Dec 6, 13 @ 11:17 am:

    You evidently do not believe in patronage loyalty


  9. - Earl Shumaker - Friday, Dec 6, 13 @ 11:19 am:

    Sometimes it pays to be paranoid!

    For many of us there is a total lack of trust and credibility when it comes to “our” state government As a result of this so-called “pension reform” legislation, the Illinois Constitution and contract law along with state retirees became political collateral damage

    Thanks RNUG’s for your insight.


  10. - qcexaminer - Friday, Dec 6, 13 @ 11:21 am:

    I don’t know anything about the other justices, but RNUG’s arguments would be more convincing to me if it wasn’t a fact that Madigan poured $1.5M into Kilbride’s retention race.


  11. - Give Me A Break - Friday, Dec 6, 13 @ 11:22 am:

    I’m just wondering if any of the AFSCME members screaming about the pension reform would be willing to give back their recent raises to assit with the state’s budget.


  12. - Norseman - Friday, Dec 6, 13 @ 11:22 am:

    Captain - Well used but still a funny line.

    RNUG - I have to tip my hat to you for not succumbing to the cynicism that affects many who have spent long years working for the State.


  13. - Bigtwich - Friday, Dec 6, 13 @ 11:29 am:

    Well said. Thanks


  14. - gallerywalker - Friday, Dec 6, 13 @ 11:29 am:

    Yeah, I might have be willing to give back recent raises if I had not deferred raises in the past that I still have not been paid for. Please, give ME a break!!


  15. - Demoralized - Friday, Dec 6, 13 @ 11:30 am:

    ==You evidently do not believe in patronage loyalty ==

    Are you insinuating somehow that there are Supreme Court justices in their positions because of Madigan patronage? Tone it down apparently has turned into kick it up a notch for you.


  16. - Commenter - Friday, Dec 6, 13 @ 11:30 am:

    Retention CAN be a big deal. Just ask Tom Kilbride. That said, my guess is MJM is more interested in who the Supremes pick to fill judicial vacancies than in how they decide individual cases.


  17. - Decaf Coffee Party - Friday, Dec 6, 13 @ 11:31 am:

    Ummmm…instead of giving money back to the state, perhaps people wanting to help save the state’s finances could just write a check to ADM and cut out the middleman (and, yes, I am predicting House passage and a gleeful signature by the Gov).


  18. - Lil Squeezy - Friday, Dec 6, 13 @ 11:34 am:

    In addition to everything RNUG stated, Labor has donated a lot of money to some of these justices as well. I setting aside my tinfoil hat on this one.


  19. - wordslinger - Friday, Dec 6, 13 @ 11:36 am:

    Ed Burke was a big backer of Gerry Chico and pushed hard to get Emanuel knocked off the ballot.

    The Supremes ruled unanimously to keep Emanuel on the ballot.

    Burke has certainly been helpful getting judges to the bench, including his wife on the Supremes.

    It’s good to be the judge.


  20. - Mouthy - Friday, Dec 6, 13 @ 11:37 am:

    The judges on the ISC surely would know that the possibility of them ruling unjustifiably on the pension issue and then finding that in the next year or two a big push to include their retirement system in the mix is a distinct possibility. Wouldn’t they feel “smart” then…


  21. - dupage dan - Friday, Dec 6, 13 @ 11:40 am:

    GMAB - would you be willing to give over some more of your income to accomplish the same thing? Write your reps and ask them to institute a new tax - that is what you are suggesting for AFSCME members. On another note, you do realize that not all state employees are members of AFSCME or - for that matter, a member of any union?

    To the post - thanks to RNUG for the clarification. Independence of the judiciary - Jorgensen vs Blagojevich is evidence of it’s existence, no?


  22. - Anon. - Friday, Dec 6, 13 @ 11:42 am:

    ==claiming 1/3 of Illinois Government is willing to ignore their role so blatantly has no credibility==

    I totally agree with RNUG, but your reminder that a majority of one of the 3 branches of Illinois government and the most important member of another have blatantly ignored the constitution is making me reconsider.


  23. - UIC Guy - Friday, Dec 6, 13 @ 11:58 am:

    I don’t know what to make of this. The warning against paranoia is salutary. On the other hand: the language in the Constitution seems, on the face of it, so clear and unambiguous (’a contractual relationship, the benefits of which shall not be diminished or impaired’) that it’s hard to see how anyone could expect the Court to accept the new law unless they thought the Court was going to be influenced by factors other than the the plain sense of the language in the Constitution. Yet lots of (presumably)smart people do think—or at least say—that is constitutional, or at least that it stands a good chance of being found to be constitutional.

    So what’s going on? i) the language is not clear after all (but surely it is); ii) those people are not at all smart after all (but surely they are, at least capable of understanding the words in the pension clause); iii) they cynically expect it to be overturned, and want to pass a law which is overturned rather than no law so that the court and greedy unions can then be blamed for tax raises (possible—but how many people have that view? surely cynicism is not so widespread? or am I being naive??); iv) the paranoia is justified, the fix is in. Are there possibilities I’m missing?


  24. - Ghost - Friday, Dec 6, 13 @ 11:58 am:

    the floor debate made it clear that they left the judicial pension plan alone, because the ILSC would never approve a cut to their own pension.

    So I am not sure paranoia is a fair chracterization; nor does RNUG’s point hold completly true.

    the ILSC is suceptable to the gift of being allowed to keep their overly generous pensions with little in the way of contributions as a reward for upholding the law.

    If the States fiscal crisis is so dire, then there is no need to leave the jduges pension out. The judges have one of the most costly and least well funded system.

    If it walks like a bribe, quacks like a bribe, its a bribe.


  25. - RNUG - Friday, Dec 6, 13 @ 12:03 pm:

    UIC Guy - Friday, Dec 6, 13 @ 11:58 am:

    I lean to iii)

    I forget which commenter here said it (apologies), but what we’re seeing here is a political process trying to resolve a legal and financial problem.


  26. - RNUG - Friday, Dec 6, 13 @ 12:09 pm:

    Norseman - Friday, Dec 6, 13 @ 11:22 am:

    I’m probably more cynical that a lot of us here … and even paranoid. I tend to edit out some of my cynicism before posting.


  27. - Jack Handy - Friday, Dec 6, 13 @ 12:10 pm:

    This is Illinois, some are justified for their paranoia. Let’s revisit this topic after the court rules.


  28. - Lobo Y Olla - Friday, Dec 6, 13 @ 12:12 pm:

    “claiming 1/3 of Illinois Government is willing to ignore their role so blatantly has no credibility in making a case for anything you hope to advocate.”

    I’m not so sure OW, when the 1/3 of Illinois Government is only 7 people. That’s the fear of us unconnected common folk. It also doesn’t help when MJM references that he thinks 4 justices will vote in favor of it….and four of the Justices are Dems. I’m not saying the fix is in, I’m just saying the optics are terrible. Just ask my mom.


  29. - Anonymous - Friday, Dec 6, 13 @ 12:19 pm:

    RNUG, really respect your opinions but also think (and hope) MM’s comments will hurt his cause. The justices don’t like any hint of bribery. That being said, as a retiree of 38 years in state govt, I’ve earned the right to be cynical and paranoid.


  30. - Rollo Tomasi - Friday, Dec 6, 13 @ 12:20 pm:

    =======Ed Burke was a big backer of Gerry Chico and pushed hard to get Emanuel knocked off the ballot. The Supremes ruled unanimously to keep Emanuel on the ballot.=========

    I will bet a lot of them are having second thoughts about that now.

    You have to wonder how Quinn really feels about the unions. He signed the Gay marriage bill at a red carpet event like the Oscars. But he signed this pension Bill without a lot of fanfare. I know a lot of teachers who are now Rutherford fan. Quinn just got by in the last election. Lets see if the repubs can screw this up and slate Bruce the 58 million dollar man.


  31. - UIC guy - Friday, Dec 6, 13 @ 12:28 pm:

    RNUG: thanks for the reply. I certainly hope it’s iii) (I’d rather be blamed for a tax increase than have my pension cut!). But just for that reason I’m reluctant to believe it—I know that wishful thinking is a powerful force, and don’t want to be taken in by it. But I really hope you’re right.


  32. - Chris - Friday, Dec 6, 13 @ 12:41 pm:

    “the language is not clear after all (but surely it is)”

    Um, no. If you think that the Constitution is crystal clear in protecting *yet to be earned* pension benefits, then you are ’surely’ wrong. But that is the argument from the anti ‘reform’ side.

    There is *no doubt* that there is room for interpretation of the pension clause except as it relates to the nature of participation as being a ‘contractual relationship’. Everything else is open for *some* interpretation.

    Now, is any particular interpretation likely? Of course not. Would 100% upholding this reform require some degree of torture of the language? More likely than not. But that doesn’t mean that the language is ’surely’ clear.

    Regarding the contractual right, and the power of the State to abrogate its obligations, my view is that the question will come done to Justice Burger’s formulation (in concurrence) in US Trust v New Jersey:

    “In my view, to repeal the 1962 covenant without running afoul of the constitutional prohibition against the impairment of contracts, the State must demonstrate that the impairment was essential to the achievement of an important state purpose. Furthermore, the State must show that it did not know and could not have known the impact of the contract on that state interest at the time that the contract was made.”

    Dunno if the case can be made wrt this reform, but I think that if it is, the contract clause issue is DOA.


  33. - Robert the Bruce - Friday, Dec 6, 13 @ 12:44 pm:

    ==it’s hard to see how anyone could expect the Court to accept the new law unless they thought the Court was going to be influenced by factors other than the plain sense of the language in the Constitution.==

    Agree.

    But let’s say the ISC does uphold the law.

    Some would conclude that the upholding happened because of Madigan’s influence, but I’d find the more likely reason to be that sometimes courts are hesitant to strike down a high-profile law.


  34. - Cook County Commoner - Friday, Dec 6, 13 @ 12:47 pm:

    Asserting that MJM has any influence on the ISC is unjustified.
    However, I remain concerned that the Court has a conflict of interest, even though it’s pension system is not included in the reform legislation. As noted above by another contributor, the Justices will be wondering how long before their pensions are on the block if they rule the reform is constitutional.
    And I’m wondering how vigorously the state will defend the new law. Assuming the court views the state constitution’s pension protection as merely creating a contract (instead of something more armor plated), then there are a number of possible contract law defenses entitling the state to modification. Will the State raise these defenses? Would the elected decision makers for the defense take a dive to protect their own pensions down the road?
    I also wonder if Illinois court rules would permit an intervenor to raise the conflict of interest issue. An intervenor would also help in keeping the defense honest.
    And then there is the issue of whether a ruling by the ISC is appealable to SCOTUS.
    Whatever happens, this litigation will likely rewrite a lot of rules.


  35. - Anonymous - Friday, Dec 6, 13 @ 12:48 pm:

    I know and Ann Burke just happened to be the most qualified when an opening on the Supreme Court was availble.


  36. - Anonymous - Friday, Dec 6, 13 @ 12:51 pm:

    Im sure The Attorney general is a completly unbiased office that Mike Madigan has no influence over also. Has lisa answered the question of has her office ever hired someone Mike Madigan asked it too. She didnt want to answer it after the Metra hiring scandal.


  37. - Voicefromthedarkness - Friday, Dec 6, 13 @ 1:00 pm:

    As I opined yesterday, we are holding up our end in the Central portion of the State. New Supreme Court Chief Justice Rita Garman is the real deal. Selected based on merit when appointed in her career, overcoming the glass ceiling in relation to what can be accomplished based on gender, and the only Chief Justice EVER to serve at every level on the Court.

    When good, honest, decent, worthy people ascend to the top, we can all be proud. Rita Garman . . . . .a class act that should be the barometer for what the best and brightest look like going forward. Equally impressive . . . she is as humble and down to earth today as she was 25 years ago. Refreshing.


  38. - Norseman - Friday, Dec 6, 13 @ 1:02 pm:

    === Some would conclude that the upholding happened because of Madigan’s influence, but I’d find the more likely reason to be that sometimes courts are hesitant to strike down a high-profile law. ===

    The key factor in forming my opinion on the bias or lack of bias by the justices in case will come after reading their opinion. If it is a well argued one, then I may not like but would complain of political influence in the decision. However, if it’s stilted and looks like they were reaching for a way to protect the law, then I would harshly judge the justices’ motives. [Of course, my harsh opinion won’t mean a thing in the grand scheme of things.]

    An example of my thought process can be found with the circuit court ruling on Maag. That portion of Nardulli’s ruling that referenced the statement that insurance changes over the years was widely reported by the media. I thought this to be a ridiculous argument because the issue is whether retirees would have to pay some type of premium for the coverage. My initial reaction was to question the impartiality of Nardulli. However, in reading the opinion he provided a number of case examples that formed a reasonable basis for his decision. I still disagree with the ruling, but I don’t feel that I have any basis to question his impartiality.


  39. - Stones - Friday, Dec 6, 13 @ 1:11 pm:

    RNUG’s analysis is correct and accurate but to think that MJM doesn’t have some influence on the Supreme Court wouldn’t be accurate. He was largely responsible for many of their initial elections to the Court. The Justices know exactly where he stands on this issue.


  40. - RNUG - Friday, Dec 6, 13 @ 1:11 pm:

    Norseman - Friday, Dec 6, 13 @ 1:02 pm:

    Maybe it’s my paranoia ;-) but I still see a very circuitous route taken to reach the Nardulli ‘Maag’ decision. I’m going to find what the ISC has to say about it very interesting.


  41. - facts are stubborn things - Friday, Dec 6, 13 @ 1:14 pm:

    @- RNUG - Friday, Dec 6, 13 @ 12:03 pm:

    It was I. I firmly beleive, as I suspect you do as well, that we are seing the political path that for now is being taken. I bleive that many who voted for this pension bill don’t beleive for one second that it is a good idea or legal for that matter. They however, do realize that politicaly something had to be passed that could get 30 votes in the senate and get signed by Quinn so that it oculd make it to the SC to get overturned to then give political cover and direction to forge a pension bill that is fair and legal. Please don’t yell at me anybody, but politicaly speaking, in order to solve this pension deal fairly and legaly we first need to take this unfair and illeal path.


  42. - RetiredStateEmployee - Friday, Dec 6, 13 @ 1:17 pm:

    I don’t subscribe to the idea that MJM owns the supreme court. On the other hand, what appears to be the intent of the constitutional language with regard to pensions, we mere mortals have no trouble understanding. Lawyers, on the other hand, have been known to twist the language to mean whatever they want it to mean. And some of them are liars. The cause of the pension underfunding is not the COLA, it’s the decades of underfunding. See IMRF.

    If only Judge Judy were involved…”If you eat the steak, you have to pay for it” in regard to contract law. The citizens of Illinois had their steak, but now don’t want to pay for it.

    I can only hope that the ISC has Judge Judy judges and not MJM lawyers on it.


  43. - Jeff Trigg - Friday, Dec 6, 13 @ 1:17 pm:

    The Illinois Supreme Court ruling based on the plain language of the State Constitution instead of political considerations? Nah, never happen.

    Around 300 signatures needed to run for the IL Supreme Court as a Democrat, but an independent candidate would need 25,000. Article III. Section 3 of the Illinois Constitution, “All elections shall be free and equal”. If the Illinois Supreme Court believes 300 and 25,000 are equal, there is no telling how they will interpret the pension protection clause, is there?

    Its fun piling onto the paranoia, I can’t resist. Also, if RNUG is correct that the justices are free of influence from MJM, what about the justices’ family and friends. Do any of them have or need government jobs? Government contracts or grants? Property tax cases? Campaign donations? College scholarships or recommendation letters? The justices might not need anything more from MJM, but that doesn’t mean their family or friends won’t need anything. Not saying it would happen, just pointing out that RNUG’s fine assessment wasn’t necessarily complete.

    I think they should throw out most of this pension bill as unconstitutional. Current employees should get everything contracted and promised regarding pensions. It’ll be fascinating to see how the courts handle this. If this pension reform fails, MJM can still try to transfer many of the pension obligations back to the schools, cities and counties, who can file for bankruptcy. If they let Detroit reduce current pensions, it can happen here too below the state level. There’s some more paranoia for ya.


  44. - RNUG - Friday, Dec 6, 13 @ 1:18 pm:

    Stones - Friday, Dec 6, 13 @ 1:11 pm:

    I’m sure they know MJM’s thoughts also. The question we can’t answer is how much does that opinion matter to each justice?

    I’ve only had the honor of knowing one (since retired) ISC justice. But in their case, I don’t think anything but the facts and law would matter in their decision.


  45. - facts are stubborn things - Friday, Dec 6, 13 @ 1:20 pm:

    I also believe that just about every decision that MJM makes is seen through the lense of “how do I keep my majority” plain and simple. Once you look at his actions through that lense, it helps to understand what he does. I don’t think he cares one way or the other how the SC rules to be honest. He just knows we have to resolve the pension issue and he is trying to find a way to do it and keep his majority. This bill protects many of his members — and for now helps going into an election. He will be just fine with the SC overturning this law and then he will get to work trying to take the lead on how to proceed and again keep his majority. You know the old saying, “follow the money”, with MJM it is just follow the power i.e. Majority.


  46. - Archimedes - Friday, Dec 6, 13 @ 1:21 pm:

    Chris at 12:41,

    Regarding reduction of the benefit. SB1 reduces benefits already earned. If it only impacted future to be earned benefits, there would be no impact on retirees - by definition they have earned all benefits since they are no longer working.

    If only unearned benefits were reduced, there would be little to no reduction in the State’s pension costs. The cost of benefits yet to be earned is the Normal Cost each year, and that is about $1.6 billion of the $6 billion being paid.

    Even the reduction of the pension formula for benefits not yet earned would be inconsistent with past ISC rulings, except for new employees.

    Reducing benefits that have already been earned has only been done in Rhode Island - and they are embroiled in court with both sides participating in voluntary federal mediation . Plus Rhode Island constitution is silent regarding pensions, although judges there have ruled that pensions are a contract.


  47. - Soccer tease - Friday, Dec 6, 13 @ 1:21 pm:

    Recently served as Forman on a jury trial for financial exploitation of the elderly. The judge didn’t take kindly to theft of the elderly.


  48. - funny guy - Friday, Dec 6, 13 @ 1:34 pm:

    If you don’t believe that the ISC is capable of making a political decision, I have 3 words that should have you reconsider: Bush vs. Gore.


  49. - Formerpol - Friday, Dec 6, 13 @ 1:34 pm:

    I agree with RNUG. However, in my opinion, Madigan uses and needs the Supremes to make judicial appointments and judicial promotions, when there are vacancies and the Supremse appoint. That way he has control over many lawyers and trial-level judges who want to move up. A recommendation from Madigan for these vacancies will usually be slavishly obeyed, in my opinion. This perk is much more important to the Speaker than is any ruling once they are on the Supreme Court. I mean, Madigan’s Reps now have cover on the pension issue for electoral purposes. Isn’t that, and power to influence appointments, what a political leader treasures most? Once they are on the Supreme Court, they can be independent in their rulings, while still catering to the Speaker’s political patronage via judgeships. I mean, this is Illinois!!


  50. - RNUG - Friday, Dec 6, 13 @ 1:39 pm:

    facts are stubborn things - Friday, Dec 6, 13 @ 1:14 pm:

    I knew it was one of the regulars, but was suffering a senior moment on exactly who.


  51. - wordslinger - Friday, Dec 6, 13 @ 1:42 pm:

    –If you don’t believe that the ISC is capable of making a political decision, I have 3 words that should have you reconsider: Bush vs. Gore.–

    Huh? That was the Illinois Supreme Court?

    Was Madigan in on that, too?


  52. - facts are stubborn things - Friday, Dec 6, 13 @ 1:42 pm:

    @RNUG - Friday, Dec 6, 13 @ 1:39 pm:

    I am starting to have a few of those myself. Thanks for all the information and insights you provide.


  53. - Formerpol - Friday, Dec 6, 13 @ 1:43 pm:

    Funny Guy: In Bush v. Gore the US Supremes voted 7-2 that the Florida Supreme Court’s recount ruling violated the US Constitution. This was certainly not a partisan vote. What the Court voted 5-4 on was the remedy- the stay to stop any further recounts.And in view of the time pressures at that moment and the Florida’s Legislature’s announced intent to appoint new electors under Florida law , it was not an unreasonable resolution. Pro-Gore people never mention the 7-2 vote on the merits! And the media recounts thereafter confirmed that Bush would have won Florida again anyway. So it was not a partisan political vote, liberal mythmaking to the contrary!


  54. - Marty - Friday, Dec 6, 13 @ 1:47 pm:

    Archimedes @ 1:21

    Excellent argument regarding earned benefits. Hadn’t thought about it exactly that way, but makes perfect sense. Thanks.


  55. - Former Merit Comp Slave - Friday, Dec 6, 13 @ 1:50 pm:

    On the other hand is it possible MJM is singing at the top of his voice that he alone was responsible for this pension bill because he KNOWS it will be overturned and therefore will make all the union folks and their money happy again?


  56. - Loop Lady - Friday, Dec 6, 13 @ 1:51 pm:

    I guess it depends on the judges interpretation of the word “diminished”…there’s paranoia and there’s the facts…see Anonymous at 12:48 and qcexaminer at 11:21…nuff said…


  57. - Steve - Friday, Dec 6, 13 @ 1:53 pm:

    Madigan’s influence on the court isn’t the biggest conflict of interest. The Illinois Supreme Court justices are going to be asked to hear a case in which they have a DIRECT economic interest. It would be better if the Wisconsin Supreme Court heard this case ( we know that isn’t going to happen). Anyway, Madigan put through a bill that probably will stand up in court. Why? Because Madigan isn’t cutting anyone’s current pension. He’s cutting their future potential pension. The Illinois state constitution doesn’t say anyone is guaranteed a cost of living increase. Where the lawsuit probably has its’ best chance is those who are vested but not retired (if their first paycheck would be different than before the law change). My hunch is: the Illinois Supreme Court will uphold the law.


  58. - Chris - Friday, Dec 6, 13 @ 1:53 pm:

    Archimedes: “Regarding reduction of the benefit. SB1 reduces benefits already earned. If it only impacted future to be earned benefits, there would be no impact on retirees - by definition they have earned all benefits since they are no longer working.”

    In what way is a COLA “already earned”? I understand the *argument* that it is “earned”, but do you honestly not understand the argument that it is not?


  59. - RNUG - Friday, Dec 6, 13 @ 2:11 pm:

    At one point, the courts said the pension protection clause also applied to “enhancements granted by the General Assembly”. I think we can all agree that the 3% AAI was, indeed, granted by the General Assembly.

    The only question is whether the fixed 3% AAI was an “enhancement”. Since previous pension increases were granted on a random (and political) basis, it would appear a regularly scheduled increase is an enhancement.


  60. - Anonymous - Friday, Dec 6, 13 @ 2:14 pm:

    = But there’s no guarantee that such help would be needed.=

    lol I’m glad you tossed that out there; the previous statement seemed to be way bit of a stretch.


  61. - Anon. - Friday, Dec 6, 13 @ 2:14 pm:

    ==In what way is a COLA “already earned”? I understand the *argument* that it is “earned”, but do you honestly not understand the argument that it is not?==

    No, I don’t understand. If I give you $1000 today, in exchange for your promise to pay me $10 per month next year, $10.30 per month the year after that, and then $10.61, etc., I have earned those steps every bit as much as I have earned the $10 per month.


  62. - Anonymous - Friday, Dec 6, 13 @ 2:22 pm:

    = That being said, as a retiree of 38 years in state govt, I’ve earned the right to be cynical and paranoid. =

    I was going to comment on the first “Anonymous” comment, but then saw the foregoing and decided “nuff said.”


  63. - Archimedes - Friday, Dec 6, 13 @ 2:27 pm:

    An annual increase that is specific, fixed, and contained in the pension act and is not dependent on any legislative action from year to year is as much a part of a pension as the service credit and average earnings formulas.

    There was an annual increase in the pension act prior to the 1970 constitution. It was increased 3 times since 1971 - in each case it was a specific % codified in the Pension Act. It is predictable, known, and calculated as part of the Normal Cost each year.

    Those familiar with commercial leases know it is quite common for a multi year lease to increase by a fixed % each year. You can negotiate the lease increases, but you can’t ignore the contractual provision.


  64. - pensioner - Friday, Dec 6, 13 @ 2:34 pm:

    The issues in the new law are applicable to the US Constitution also putting them in the Federal judicial should that be necessary or desired. ISC may not have the final say. SCOTUS might. Hopefully further on down the line so Dems can properly stack the court to their favor philosophically. Hoping the cons on the SCOTUS can find other avenues of entertainment making this possible


  65. - Anonymous - Friday, Dec 6, 13 @ 2:35 pm:

    =If the States fiscal crisis is so dire, then there is no need to leave the jduges pension out. =

    Ghost, that would be a conflict of interest.


  66. - pensioner - Friday, Dec 6, 13 @ 2:39 pm:

    Sad that judges have a “political life”. In that they do the fix may indeed be in.


  67. - facts are stubborn things - Friday, Dec 6, 13 @ 2:40 pm:

    If there is any group that the court would uphold it is those already retired. This group retired based on the law at that time and made a decision based on those promised benfitis. Retirment is a special group of people who in most cases can not longer ajust to or make many modifications to their financial situation. The group that is retired has finished the game, they have crossed the finish line and to change the rules on that group is imoral and I beleive will be found to be unconsitutional. We have all hear the axiom, don’t change the rules in the middle of the game, how about don’t change the rules after the game is over. This would be like changing how much free throws are worth to change the outcome of a basketball game after it is over. Let’s make freethrows worth nothing so the other team wins. Come on!


  68. - Andrew Szakmary - Friday, Dec 6, 13 @ 2:44 pm:

    Those of you questioning whether the so-called COLA (actually it is a fixed 3% AAI that is not tied to inflation in any way) is an earned benefit need to understand that employees, during their working years, contributed a specific percentage of their salaries to provide for this AAI.

    Let me see if I can provide an analogy: I buy a long-term care insurance policy that pays $50,000 per year if I am admitted to a nursing home. The policy contains an escalator clause that increases the $50,000 benefit by 3% each year, and I pay a higher premium specifically because of this escalator clause. After paying premiums for 20 years, when I require nursing care the insurance company refuses to abide by the escalator clause in the contract, and pays me only up to $50,000 annually. Short of bankruptcy, how is this possible under the rule of law?


  69. - Anonymous - Friday, Dec 6, 13 @ 2:45 pm:

    =If it walks like a bribe, quacks like a bribe, its a bribe. =

    Many see it as a “preemptive move” and it seems to work. You can’t be bribed if there’s no reason to bribe. That’s why I had to chuckle at RNUG’s statement regarding the need for anyone’s backing to get into a firm as of counsel (and his observation that same probably wasn’t necessary). It was like grasping at straws for a power play.


  70. - PublicServant - Friday, Dec 6, 13 @ 2:48 pm:

    Frankly Chris, no, I don’t understand that the COLA is not an already earned benefit. The pensions by definition deal with future payments to annuitants based on a well defined formula. The AAI is a component of that formula. Just as next month’s “future” payment is a component. I realize that you’re just stating the Sidley argument trying to state that future AAIs have yet to be “earned” but that is exactly the wrong word to use. They have definitely been earned, and have been vested upon by every retiree out there when they signed their retirement papers and made their irrevocable decision to retire. The only issue left to the future is the distribution itself. As for current employees, since they have agreed to provide service based on their salary and deferred compensation represented by the pension and all the rules governing it at the time they accepted employment, it has been most definitely earned by them too. Again, the only issue left to the future is the distribution of the already earned benefits.


  71. - RNUG - Friday, Dec 6, 13 @ 3:03 pm:

    Andrew Szakmary - Friday, Dec 6, 13 @ 2:44 pm:

    Actually, some of the retirees did not pay a specific amount for the AAI. SERS participants had it granted to them. The rest of the groups negotiated for it and agreed to pay a specific contribution for it.

    Way, way back (a year or more, probably while talking about “Maag”) I pointed out there are actually a lot of different categories (classes) that get lumped into the state retiree / employee bucket. Think I came up with something like 10 (based on slightly different pension rules) at the time just for the retirees; with Tier 2 thrown in for active employees, there could be as many as 40 for employees.

    At the time I noted it was likely there could be different rulings based on which group a retiree was part of. If the ISC starts slicing and dicing, it’s going to take a while to write that opinion …


  72. - Archimedes - Friday, Dec 6, 13 @ 3:21 pm:

    Someone referred to the Sidley opinion that the constitution protects benefits earned, not prospective/yet to be earned benefits. The automatic annual increase was not discussed in his opinion.

    In fact, he stated that all rights earned up to the time the pension reforms are implemented are protected. The logical conclusion is that the AAI can be changed, but the final pension paid at retirement would be a blend of the years prior to the change at the old AAI and the years after the change at the new AAI.


  73. - RNUG - Friday, Dec 6, 13 @ 3:23 pm:

    Sidley’s in the minority when it comes to pensions analysis …


  74. - RNUG - Friday, Dec 6, 13 @ 3:25 pm:

    Should have been clearer … he’s in the minority in terms of thinking the protection only covers already earned


  75. - Archimedes - Friday, Dec 6, 13 @ 3:34 pm:

    I agree that Sidley is in the minority. Only pointing out that even his opinion would not suggest that the AAI can be reduced for the years already worked.


  76. - RNUG - Friday, Dec 6, 13 @ 3:38 pm:

    Agree


  77. - Anon. - Friday, Dec 6, 13 @ 3:45 pm:

    ==Actually, some of the retirees did not pay a specific amount for the AAI. SERS participants had it granted to them. The rest of the groups negotiated for it and agreed to pay a specific contribution for it.==

    Totally irrelevant. You earn your pension by doing the job. The fact that the state pays some people and then takes it back to contribute to the pension fund, or is simply obliged to make the contribution on its own, is window dressing at best.

    As to Sidley, I have an old friend there who is a very smart lawyer, and who still blushes every time I mention that opinion.


  78. - Chris - Friday, Dec 6, 13 @ 4:07 pm:

    “thinking the protection only covers already earned”

    RNUG-serious question–do you believe that (ignoring, arguendo, any employment protection laws) the IL Constitution would prohibit the termination of all current pension-eligible employees, with a next day offer of re-hiring *subject to* no further pension benefits accruing thereafter? If so, why?

    (and yes, I do recognize the insurmountable problems of that–BUT, that’s basically the most logical implementation plan of Rauner’s “plan” for dealing with pensions).


  79. - Formerly Known As... - Friday, Dec 6, 13 @ 4:15 pm:

    My Wednesday comments expressed a very strong belief in the independence and honesty of those judges, reflecting RNUG’s view above.

    ### His excellent summary in this post, and my own earlier comments, overlook one critical factor: These judges do not live or function in a vacuum. ###

    Many Illinois judges become judges in the first place largely due to their political connections.

    The “circle of friends” that enables them to become slated or appointed as a judge in the first place is NOT limited strictly to themselves. Many of these judges have family and close friends whose livelihood and success depends upon the political system.

    Our assumption that judges are free from any sort of political pressure once appointed also assumes they live in a vacuum. They do not.

    It is incorrect to assume that the judges, and only the judges, would be the ones cognizant of political pressure from some very powerful individuals - individuals who control legislation, state contracts, appointments, fundraising, and the very source of livelihood and distinction for many friends, family and loved ones in direct proximity to these judges.

    Will that make any difference? Who knows.


  80. - funny guy - Friday, Dec 6, 13 @ 4:19 pm:

    Formerpol:

    Read Bugliosi’s book on Bush v. Gore and call me in the morning. Vince is no liberal.

    wordslinger: No, Madigan didn’t have influence at the USSC. It was an analogy–if politics can shape federal law, it sure can influence state law. Have we all forgotten Operation Greylord?


  81. - wordslinger - Friday, Dec 6, 13 @ 4:24 pm:

    Funny Guy, you’re kind of hopping all over the place.

    Greylord was straight up cash bribes from the Mafia to fix cases. What connection are you making here?


  82. - Formerly Known As... - Friday, Dec 6, 13 @ 4:28 pm:

    In other words: The intersection of law and politics cannot be ignored in Illinois.

    Does that mean undue influence is ever brought to bear? Or that personal considerations have never slightly shaded the wording of a sentence or two in important legal opinions?

    Who knows.

    But politics and law are definitely intertwined in Illinois.

    Just ask Ed and Anne Burke. Or Mike and Lisa Madigan. Or any of the many others who have prominent political and legal ties in Illinois.


  83. - funny guy - Friday, Dec 6, 13 @ 4:28 pm:

    Again–my point is that judges can be influenced–they put on their pants one leg at a time, just like you and me. And, how many judges were convicted in Greylord (about 25), and it was all mafia related? I don’t recall that. And that was the tip of the iceberg—not everyone got caught.


  84. - RNUG - Friday, Dec 6, 13 @ 5:27 pm:

    Formerly Known As …

    Sure, anyone can be influenced through family and friends … and that’s a valid point. The question is to what degree? It’s one thing to call black dark gray; it’s totally different to insist black is actually white.

    People in political life, and especially in the judiciary, are in the public eye and subject to a lot of second guessing. Blatantly / obviously partisan or incorrect decisions, when reviewed in daylight, tend to lead to public outcry and, at least during certain eras in the past, actual tar and feathering.

    It’s fun to speculate but we’ll have to wait and see what actually happens.


  85. - billy joe bob - Wednesday, Dec 18, 13 @ 3:24 pm:

    Point to be made….The costs of current retirees benefits to the State disappear through attrition. Many of us will be gone within 20 years.


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