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From Justice Burke’s dissent

Thursday, Jul 3, 2014

* Take a moment and read between the lines of Illinois Supreme Court Justice Anne Burke’s dissent in the retiree health insurance case

To reach its result, the majority must read into the pension protection clause language that is not there. Nowhere in the clause does it state that every benefit which “results from,” is “conditioned on,” “flows directly from” or “is attendant to” being a member of a pension system is provided constitutional protection. These phrases, which form the crux of the majority’s opinion, are simply crafted out of whole cloth. It is fundamental that the judiciary may not add language to a constitutional provision that was not approved by the voters of this state. To do so is to usurp the sovereign power of the people. The majority’s addition of language to the clause is error.

Moreover, by adding language to the pension protection clause, the majority fundamentally changes its meaning. The clause no longer protects the statutory benefits provided by a pension or retirement system. Instead, it provides constitutional protection to any statutory benefit—however unrelated to pensions—if the recipient of the benefit is a member of a pension system. And the majority provides no limit to this holding. Should the city of Springfield enact an ordinance which states that the members of the municipal pension system will receive an honorary plaque upon retirement, that benefit would “flow from” or be “conditioned on” membership in the system. The plaque, under the majority’s reasoning, would be a constitutionally protected contractual right that could not be diminished or impaired. I do not think this is what the drafters of the pension protection clause intended.

Unsurprisingly, nothing in the constitutional debate regarding the pension protection clause supports the majority’s reading of the provision. As the majority candidly acknowledges, the constitutional debate contains no references to health insurance premiums or other non-pension benefits for retirees. To the contrary, the unambiguous statements of the sponsoring delegates reflect that it was designed to protect a public retiree’s right to collect post retirement income in the form of an annuity and to ensure that the terms under which an employee acquired that right could not be altered to his or her detriment. […]

In sum, neither the plain language of the pension protection clause, the constitutional debate, our own case law, or case law from other jurisdictions supports the majority’s position. The pension protection clause protects pensions, not subsidized health care premiums.

Even though Justice Burke clearly disagrees with this particular ruling, it certainly appears that she agrees with the majority on the “clear” and “plain” language of the state Constitution’s pension protection clause.

- Posted by Rich Miller        


45 Comments
  1. - Chicago Cynic - Thursday, Jul 3, 14 @ 10:37 am:

    Very interesting and compelling dissent. Surprised she was solo on this.


  2. - Liberty - Thursday, Jul 3, 14 @ 10:38 am:

    The clause never supported a system but a retiree. She is ignoring the “plain language.”


  3. - Bill White - Thursday, Jul 3, 14 @ 10:39 am:

    If Anne Burke’s view had prevailed, then health benefits possibly could have been traded for pension annuity benefits as John Cullerton proposed.

    But now that health benefits are afforded the same constitutional protections as monthly annuity payments, there no longer is a quid pro quo.

    = = =

    Nothing in Justice Burke’s dissent causes me to believe she would sustain SB1; her point is that health benefits are not protected pension benefits.


  4. - Jimbo - Thursday, Jul 3, 14 @ 10:43 am:

    With this ruling there is no way on earth they can uphold the pension “reform”. Wow. I’m seriously stunned.


  5. - WilCo23 - Thursday, Jul 3, 14 @ 10:43 am:

    Interesting point.

    Moreover, by adding language to the pension protection clause, the majority fundamentally changes its meaning. The clause no longer protects the statutory benefits provided by a pension or retirement system. Instead, it provides constitutional protection to any statutory benefit—however unrelated to pensions—if the recipient of the benefit is a member of a pension system. And the majority provides no limit to this holding.


  6. - VanillaMan - Thursday, Jul 3, 14 @ 10:49 am:

    The Illinois Constitution recognizes the US Constitutional right as a citizen, to be a part of a government. You can check with Wayne Whalen, but the Illinois Constitution’s protection of pensions is rooted in the Supreme Court rulings of that era, which established and clarified our rights as citizens working within our governments.

    So Justice Burke is wrong. She is not considering the era in which the clause was written, so she has forgotten.

    The pension protection clauses are not accidental, nor are they a union ruse. They are reflective of the era in which the Illinois Constitution was written and enacted, during a time when we were defining a citizen’s rights which were at that time, were in serious legal discussions at the Supreme Court level.


  7. - Archiesmom - Thursday, Jul 3, 14 @ 10:49 am:

    I agree that it’s pretty clear that Burke would join the majority against SB1. Interestingly, I was discussing the case with a Court expert this morning, and he thought Burke’s approach was the only possible one if they wanted to side with the state.


  8. - Pinker - Thursday, Jul 3, 14 @ 10:50 am:

    Does “clear” and “plain” only apply to the pension clause, or to the whole state constitution?


  9. - Joan P. - Thursday, Jul 3, 14 @ 10:50 am:

    Where’s my plaque?


  10. - PublicServant - Thursday, Jul 3, 14 @ 10:51 am:

    She fails to see that the majority is saying that while healthcare premiums are not a pension benefit, they are a benefit of membership in the pension system, which is exactly what the plain language of the constitution states. It clearly doesn’t say pension benefits are protected, but instead says that benefits of membership, which AAI and free/reduced healthcare premiums definitely were intended to be, are benefits of that membership.


  11. - Angry Chicagoan - Thursday, Jul 3, 14 @ 10:54 am:

    I think in the long run, this decision will be disastrous for the state. We now face an ongoing bankruptcy at both the state and municipal level that has a much better change of being alleviated by a Wisconsin scale backlash against the public sector than any other way. Neither outcome is healthy for the state, but at least the backlash enables us to move on. What the court has done today is removed the incentives for our best opportunity at a reasonable, fair, negotiated compromise between public labor and state and local government. You know, something like the Cullerton proposal.

    I would hope that union leaders would take the opportunity to step up to the plate as the adults in the room and refloat the Cullerton plan. I’m not optimistic, though, because of the way this decision takes bargaining chips off the table. I fear what we’ll get is troglodytism that foments a backlash.


  12. - VanillaMan - Thursday, Jul 3, 14 @ 10:55 am:

    I am a bit tired of reminding people of this historic fact. Our Constitution protects its citizens and defined the rights Illinois citizens have working for the State and their rights after their years of service.

    I am tired of anti-union folks claiming that the Illinois Constitution was written the way it was because of union influence. Baloney. It is a reflection of the era in which it was written. The language used regarding pension protection is deliberate, clear and in keeping with the discussions of a citizen’s rights from that era.


  13. - Right Field - Thursday, Jul 3, 14 @ 10:56 am:

    I guess the plain meaning only applies when they want it to. For example… “The State has the primary responsibility for financing the system of public education.” is a farce.


  14. - Steve - Thursday, Jul 3, 14 @ 11:08 am:

    I think when Anne Burke wrote this she understood the long term math problems coming for local governments . Anyway, Chicago will be declaring a Chapter 9 bankruptcy if this decision stands. There’s no possible way Chicago can pay for its’ promised obligations without massive tax increases.


  15. - wordslinger - Thursday, Jul 3, 14 @ 11:17 am:

    –The Illinois Constitution recognizes the US Constitutional right as a citizen, to be a part of a government.–

    Huh? What does that mean?


  16. - DuPage - Thursday, Jul 3, 14 @ 11:18 am:

    You have to work for the state 20 years and retire with the state pension to get the insurance fully paid. It was part of an overall deal made during the Edgar years. The employees got less in raises (which by the way, results in a lower pension) in exchange for the insurance during retirement. The state benefited by paying lower wages and was able to reduce turnover. Many state workers stayed on because of it. It was a contractual obligation as well as being intertwined as part of their pension benefits, which are protected by the Illinois constitution.


  17. - Anon. - Thursday, Jul 3, 14 @ 11:18 am:

    ==Instead, it provides constitutional protection to any statutory benefit—however unrelated to pensions—if the recipient of the benefit is a member of a pension system.==

    Actually, that is almost exactly what the constitution says:

    “Membership in any pension or retirement system . . . shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

    The group health insurance premium subsidy is a benefit of membership in one of the state retirement systems. You only received it if you were a member of the system who had retired.


  18. - 32nd Ward Roscoe Village - Thursday, Jul 3, 14 @ 11:19 am:

    Delightful, coming just a day after I received my 2nd installment property tax bill in the mail, which itemizes the $$ that go to each of the pensions I am now supporting.

    The sound you hear is people who were supporting these systems moving out and no longer supporting such a broken system with their hard-earned $$$. I don’t have a pension and probably can’t work until I’m 90.


  19. - lake county democrat - Thursday, Jul 3, 14 @ 11:19 am:

    Any takers now on my tinfoil hat conspiracy theory that this was all a way for Madigan to look like they tried oh-so-hard to buck their best (read: best paying) constituents and durn, that Constitution got in the way, rather than appear like they were in the tank the entire time? I just never believed that he and Cullerton were having an honest disagreement over state Constitutional law theory. And Rauner’s budget will be even more fantasyland if you can’t factor in the pension reform bill.


  20. - Ahoy! - Thursday, Jul 3, 14 @ 11:20 am:

    While I was for pension reform, I can understand how the supreme court might strike the law down. I can not understand how they struck this law down and can only believe that it is gross judicial overreach. Burke was spot on her decent, I would quote my favorite lines, but it would take up way too much room.

    Of course, the Illinois Supreme Court has essentially left taxpayers and the legislature no other choice than to try to amend the Illinois Constitution.


  21. - Steve - Thursday, Jul 3, 14 @ 11:22 am:

    The larger significance of this case is: it appears reforming benefits contracts can’t be done outside a federal bankruptcy court. So, those people who thought they won today, they really didn’t. Just a reminder. Anne Burke may have lost today but… she’s pointing out a few math problems here. So, the government workers did win today, but in the long run did they really win?


  22. - Obamas Puppy - Thursday, Jul 3, 14 @ 11:28 am:

    7-0


  23. - phocion - Thursday, Jul 3, 14 @ 11:28 am:

    ==The group health insurance premium subsidy is a benefit of membership in one of the state retirement systems. You only received it if you were a member of the system who had retired.==

    Logical fallacy - post hoc ergo proptor hoc.

    Burke correctly notes the majority’s illogical determination that any benefit a member of the pension fund receives does not fall under the pension protection clause. Take this further, if a non-union member receives a benefit that a union member receives, will that benefit now be available to all union members. Or conversely, should non-union members (who are in the pension fund) receive union benefits?


  24. - Jack Handy - Thursday, Jul 3, 14 @ 11:34 am:

    Majority: The drafters did not specify the EXCLUSION of healthcare benefits so we should include them.

    Dissent: The drafters did not specify the INCLUSION of healthcare benefits so we should exclude them.


  25. - Kerfuffle - Thursday, Jul 3, 14 @ 11:34 am:

    ====it appears reforming benefits contracts can’t be done outside a federal bankruptcy court====

    I don’t think bankruptcy can obviate the State Constitution


  26. - Rollo Tomasi - Thursday, Jul 3, 14 @ 11:36 am:

    ++++++- Steve - Thursday, Jul 3, 14 @ 11:08 am:

    I think when Anne Burke wrote this she understood the long term math problems coming for local governments . Anyway, Chicago will be declaring a Chapter 9 bankruptcy if this decision stands. There’s no possible way Chicago can pay for its’ promised obligations without massive tax increases. +++

    The day Rahm said he could not afford retiree health care he gave away more money than the next year’s cost of the health care to DePaul.

    Why? If Ari puts on a concert at the United Center they pay the full cost of rental. If DePaul is a private/public building. Ari will pay a much reduced cost for the date. Daley and now Rahm refuse to allow a forensic audit of the city or of it’s TIFF funds. Chicago is no Detroit. The only thing that both cities have in common is corruption in it’s elected officials.


  27. - Bluefish - Thursday, Jul 3, 14 @ 11:37 am:

    It seems the only option left is to roll back the myriad of onerous employment laws that are killing private and public employers in this state. Workers’ Comp, collective bargaining, prevailing wage, etc. all need to be brought in line with other states if we want to even maintain let alone grow our economic base. Otherwise, the higher taxes on business will be Illinois’ death knell.


  28. - JustMe_JMO - Thursday, Jul 3, 14 @ 11:40 am:

    So what happens now? Does this go back to the lower court or the legislature?

    Maybe now we will see if anyone had/has a plan “B” for correcting the pension funds shortages caused by legislative decrees.


  29. - Andrew Szakmary - Thursday, Jul 3, 14 @ 11:42 am:

    The majority is correct, and Burke is wrong, because the health insurance is tied to receiving a pension annuity. No annuity, no state-paid health care. This is clear in SURS, for example. If you chose the portable plan, and you obtain a refund of your 8% contributions with interest, along with the state’s matching contributions, when you quit working for the state, you are not eligible for state-paid health care no matter how many years you worked for the state. The state-paid health care is explicitly tied to receiving a monthly pension.


  30. - phocion - Thursday, Jul 3, 14 @ 11:48 am:

    Oops. Should say:
    Take this further, if a non-union member (in the pension fund) receives a benefit that a union member doesn’t receive, will that benefit now be available to all union members.


  31. - kcjenkins - Thursday, Jul 3, 14 @ 12:03 pm:

    Re the question above of what happens now, it’s remanded to the Circuit Court for further proceedings consistent with the opinion. Although there have been analyses around for a number of years giving a very narrow construction to what “impairs” a benefit, they are difficult to square with the plain language of the Clause, the debates, and for that matter, nearly all of the previous case law.


  32. - Mama - Thursday, Jul 3, 14 @ 12:03 pm:

    Hello… the SC ruling is about our Constitutional rights! It has nothing to do with unions!


  33. - northshore cynic - Thursday, Jul 3, 14 @ 12:13 pm:

    Is this the same Constitution that mandates that the General Assembly pass a balanced budget every year?

    When was the last time that happened?

    The Supreme Court is as political as the other branches of state government…except they will not be on the ballot in November.

    Will the last private sector taxpayer please remember to turn on the Comed lights before they leave the State?


  34. - Norseman - Thursday, Jul 3, 14 @ 12:30 pm:

    Wording does look like the ruling against SB 1 is going to be unanimous.


  35. - Anon. - Thursday, Jul 3, 14 @ 1:31 pm:

    ==Take this further, if a non-union member (in the pension fund) receives a benefit that a union member doesn’t receive, will that benefit now be available to all union members.==

    No, because the union members were never receiving or promised that benefit in the first place. In your 11:28 post, you seem to be arguing that this decision means that you can’t suspend or cancel a retiree’s driver’s license because that is a benefit the retiree was receiving. That argument is simply nonsense because the driver’s license is not a benefit that the retiree received as the result of membership in a retirement system. The health insurance premium subsidy, on the other hand, was received only as the result of membership in a state retirement system. It wasn’t given to the public in general.

    And try looking up “post hoc ergo propter hoc.” You obviously haven’t a clue to what that means.


  36. - wordslinger - Thursday, Jul 3, 14 @ 1:40 pm:

    –Any takers now on my tinfoil hat conspiracy theory that this was all a way for Madigan to look like they tried oh-so-hard to buck their best (read: best paying) constituents and durn, that Constitution got in the way, rather than appear like they were in the tank the entire time?–

    Ty, the Civvies and the Tribbies signed off on SB1. Were they in on it, too?

    Has MJM been playing nice with AFSCME lately? Has he really been in the tank for them?

    MJM inspires fever dreams in some. No taker here.


  37. - funny guy - Thursday, Jul 3, 14 @ 1:41 pm:

    Hey Rahm—when do you put the for sale sign on O’Hare and Midway? Neither of these assets provide one cent to the city’s budget–per federal law. I think we can conservatively net about $10 BILLION–which would put a nice dent in the unfunded liability.


  38. - Todd - Thursday, Jul 3, 14 @ 1:44 pm:

    Justice Burke looks like she was trying for a middle ground that did not foreclose all optiuons for the state. It could have been a very practicle way to come to a solution. Yet I don;t think medical costs are whats going to bankrupt the state.

    The unions are in a stronger position as far as legislative pension reform goes. they may be in a weaker position with the public and constitutional reforms.


  39. - Steve - Thursday, Jul 3, 14 @ 2:17 pm:

    - Rollo Tomasi -

    You are no doubt correct Chicago can’t afford sports stadium the private sector isn’t will to build. In fact, Chicago can’t afford anything . It’s going to be filing for bankruptcy sooner than many people think. Probably around the next recession when tax revenues really drop.


  40. - walker - Thursday, Jul 3, 14 @ 2:59 pm:

    Jack Handy above at 11:34, has it exactly right. The “plain” language can be interpreted either way.

    That is why it is so important to closely review the original debates and statements to establish what they actually meant to include when they used those words. When they wrote “pension” and “benefits” did they mean to include subsidized health insurance or not? At that time. If not, on what basis do we assume they are now included? Do they, as Burke alleges, just add language and logic now to include them retroactively?

    For the majority to go out of their way in the written decision, to tell us to ignore that historical material which could establish what was meant to be included, because they obviously know better now, was a mistake. The majority might be correct. The argument for their decision was incomplete, at best.


  41. - Federalist - Thursday, Jul 3, 14 @ 3:27 pm:

    So much for Judge Nardulli and his truly tortured ‘reasoning’ in this case.

    He should be embarrassed that he threw the whole thing out and bought into the Madigan, IPI, Civic Committee illogic.

    Of course, some people are beyond embarrassment.


  42. - RNUG - Thursday, Jul 3, 14 @ 4:38 pm:

    - JustMe_JMO - Thursday, Jul 3, 14 @ 11:40 am:

    This decision was only about the “premium free” health insurance after 20 years of service. It goes back to the lower court for various actions and orders, presumably including determing plaintiff’s lawyers fees, an order stopping the health insurance deductions from the retirees’ pension checks, an order to refund the moeny being held in escrow, plus an other housekeeping orders necessary to dispose of this case along the lines of the ISC ruling that it is a protected benefit.


  43. - RNUG - Thursday, Jul 3, 14 @ 4:39 pm:

    - JustMe_JMO - Thursday, Jul 3, 14 @ 11:40 am:

    We’ll have to wait until the ISC kicks SB0001 to see what coure(s) of action the GA will take.


  44. - Norseman - Thursday, Jul 3, 14 @ 4:53 pm:

    === We’ll have to wait until the ISC kicks SB0001 to see what coure(s) of action the GA will take. ===

    I’m not so sure they’re going to wait until SB 1 gets ruled unconstitutional. The halls of the Capitol are already abuzz. The folks are talking and seeing how to proceed. If Quinn wins, I would expect something new to pop on the spring session. If Raunervich wins, the Dems will let him stew in his shake-up Springfield pledge.


  45. - wordslinger - Thursday, Jul 3, 14 @ 5:09 pm:

    –If Raunervich wins, the Dems will let him stew in his shake-up Springfield pledge.–

    Well, you know he said SB1 didn’t go far enough. But that everyone should get what they were promised already.

    And that education funding will be raised and taxes cut.

    I’m sure one of those comprehensive detailed plans we’ve come to know will set it all straight.

    Gonna need a lot more chickens.


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