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Lawyers want expedited pension ruling

Wednesday, Jul 23, 2014

* Judge John Belz, who’s presiding over the pension law case, held a status hearing yesterday

Lawyers challenging last year’s pension reform law said they will make another attempt to get an expedited ruling in the case in the wake of the Illinois Supreme Court’s decision in the retiree health insurance case.

Lawyers said they believe the ruling in the health insurance case — called the Kanerva decision after one of the plaintiffs — effectively nullifies the state’s argument that Illinois’ severe financial problems allow pensions to be changed, despite the pension protection clause of the state Constitution.

At a hearing Tuesday, the lawyers said they will be filing new motions that will bring the issue before Sangamon County Circuit Judge John Belz.

“In the health care (case) and in this case, the change in pension is clearly a diminishment and impairment protected by the Constitution,” said Don Craven, who brought one of the five lawsuits challenging the pension reform law.

Before the Kanerva decision, Judge Belz’s proceedings looked like they could drag on for months and months. The only thing really left unsettled by Kanerva is the police powers argument. And even that was undermined

In light of the constitutional debates, we have concluded that the provision was aimed at protecting the right to receive the promised retirement benefits, not the adequacy of the funding to pay for them.

- Posted by Rich Miller        


45 Comments
  1. - facts are stubborn things - Wednesday, Jul 23, 14 @ 11:14 am:

    Could both sides stipulate they agree on all points other then the “police powers’ argument and focus on it exclusively? The state basically did that in the Kanerva case on health care. Need experts to chime in such as RNUG to see what actuall effect on the time line this is really going to have. Does this procedurally set up a streamlining of the arguments?


  2. - Yellow Dog Democrat - Wednesday, Jul 23, 14 @ 11:15 am:

    “The General Assembly’s authority, however, is not absolute; it must be exercised within constitutional bounds.”

    Illinois Supreme Court, Lebron v. Gottlieb Memorial Hospital, p. 20


  3. - Federalist - Wednesday, Jul 23, 14 @ 11:17 am:

    With a $35 billion budget,not counting c. another $25 billion in federal money, adequacy of funding to pay for them is not the real issue.

    Certainly it would mean less funds for other areas of government just as there was more funds for other areas of government when the state did not sufficiently fund the pension systems when it would have been a lot less expensive to do so.

    And seemingly implausible is the state wants to expand programs or create new ones.


  4. - VanillaMan - Wednesday, Jul 23, 14 @ 11:17 am:

    Yeah - I think that decision will reflect our rights as citizens to work for our governments and not have the wages and benefits earned during that service, stripped away for political reasons.

    When are we going to get an amendment that will prevent future legislators from raiding funds needed to pay for constitutionally protected public citizen service? If we had that, we wouldn’t be in this mess, right?


  5. - facts are stubborn things - Wednesday, Jul 23, 14 @ 11:17 am:

    Was this needed to put or place the recent ISC case on health care premiums in front of the judge? Without this procedural move, could the judge have used the HC premium case and the ISC opinions that decided it?


  6. - facts are stubborn things - Wednesday, Jul 23, 14 @ 11:21 am:

    @VanillaMan - Wednesday, Jul 23, 14 @ 11:17 am:
    = When are we going to get an amendment that will prevent future legislators from raiding funds needed to pay for constitutionally protected public citizen service? If we had that, we wouldn’t be in this mess, right? =

    Totally understand and agree with your frustration, but not going to see that. The key is elections and they do matter. AS long as people in Illinois keep voting the way they do we are stuck with this kind of stuff. We get the government we deserve.


  7. - Archimedes - Wednesday, Jul 23, 14 @ 11:26 am:

    it will be interesting. The State’s case, based on their response, relies on the Annual Increase (COLA)contained in the Pension Code being outside of the protection of the Illinois Constitution. They then can exercise their police power to diminish that particular contractual element of pensions.

    Given that even Health Insurance was deemed protected by the Constitution, it’s hard to believe that the Annual Increase (which is embodied in the Pension Code) is NOT protected by the Constitution.

    But - this is why we have courts. Maybe the judge will allow the full case to make sure nothing is left to question.


  8. - x ace - Wednesday, Jul 23, 14 @ 11:28 am:

    Maybe:

    Motions for Summary Judgment ?

    Circuit Court Rules as Matter of Law following Sup Ct precedent in Kanerva

    State then appeals and tries to distinguish Pension and Health Care issues.

    Seems would streamline , speed up , and be in the interest of “judicial economy ” and “economies of the parties”

    Just guessing - but maybe


  9. - Michelle Flaherty - Wednesday, Jul 23, 14 @ 11:40 am:

    It’s like the Cubs requesting a doubleheader.


  10. - Six Degrees of Separation - Wednesday, Jul 23, 14 @ 11:46 am:

    It’s like the Cubs requesting a doubleheader.

    To the plaintiffs, it looks more like the Yankees requesting a doubleheader with the Cubs.


  11. - The Elderly Man You Used to Love - Wednesday, Jul 23, 14 @ 11:57 am:

    The reference to adequacy of funding in the Kanerva case does not adequately de-bunk the police powers argument by itself. The 1996 McNamee ruling held that State contributions cannot be constitutionally enforced. The police powers argument, as I understand it, is an acknowledgment that a contract exists, and that it is being violated because to do otherwise would be to bring about financial ruin. I’m not suggesting it’s a winning argument, but I don’t see where it was completely undercut by Kanerva. Kanerva was an exercise in the meaning and scope of the Pension Protection Clause. The police power argument is not.


  12. - Rich Miller - Wednesday, Jul 23, 14 @ 12:00 pm:

    === but I don’t see where it was completely undercut by Kanerva===

    Didn’t say it was.


  13. - Pacman - Wednesday, Jul 23, 14 @ 12:11 pm:

    I am not an attorney so maybe someone can explain how the state can attempt to exercise police powers in respect to pensions to the exclusion of all other debt (bonds) and programs? Seems to me the police powers ploy is a Hail Mary!


  14. - Norseman - Wednesday, Jul 23, 14 @ 12:17 pm:

    Michelle, your usually on the top of your game, but you lost me on this one. If there is a baseball analogy here, it would be more like what Six said.


  15. - Just Trying to Survive - Wednesday, Jul 23, 14 @ 12:18 pm:

    I’m tired of the scolding about how we keep electing the same people to office and get what we deserve. Which governor is pro-public workers? As I see it, they’re the same. Get to the legislature. How many ran under one premise, regarding protecting the constitution and it’s guarantees, and then voted the opposite. Voting doesn’t guarantee that you’ll get the same result you were “promised” when these clowns ran for the office. Wish it were so black and white, but sure seems like a shot in the dark these days, voting, that is.


  16. - JS Mill - Wednesday, Jul 23, 14 @ 12:19 pm:

    =as I understand it, is an acknowledgment that a contract exists, and that it is being violated because to do otherwise would be to bring about financial ruin.= As I understand it the police powers argument will not hold much water due to the fact that there are readily available remedies that have not been remedies that have not been applied- revenue increase options. I base that statement on information shared with me by council for one of the groups that have brought suit. I think that approach seems logical since Sen. Kwame Raoul is on record saying that the reform bill was not their only option, just the most politically palatable option.


  17. - Norseman - Wednesday, Jul 23, 14 @ 12:28 pm:

    The Kanerva reference to funding needs to be read in conjunction with the numerous cases that have ruled that funding concerns do not supersede constitutional protections. YDD referenced one. Jorgensen v Blagojevich is another. Clearly, the court in Kanerva signals its belief that the pension clause is to be respected and with that Belz should now grant the summary judgment.


  18. - DuPage - Wednesday, Jul 23, 14 @ 12:29 pm:

    I think it would be good to get the ruling over with. That way they would know how much payment will be needed for next year. If the pension cuts are thrown out, they could cover the cost by extending the 5% income tax before Jan. 1st.


  19. - Black Ivy - Wednesday, Jul 23, 14 @ 12:42 pm:

    I fully concur with the attorneys’ request to expedite the anticipated ruling on the constiuttionality of the pension reform law. Time is of the essence!


  20. - Emily Booth - Wednesday, Jul 23, 14 @ 12:46 pm:

    I really liked what Schimpf had to say. He said circumventing the constitution for a state emergency or crisis was a dangerous idea.


  21. - Chicago Publius - Wednesday, Jul 23, 14 @ 12:49 pm:

    Pacman at 12:11 pm: . . . maybe someone can explain how the state can attempt to exercise police powers in respect to pensions to the exclusion of all other debt (bonds) and programs?

    You’ve hit the nail on the head with this question. Assumming, for the sake of argument, that the state is too “broke” to pay its pension contributions, the state will still have a hard time explaining why one class of debtors (the pensioners) should be the only class of debtors to take a hit. The State’s approach (we’re broke so we can break our contract with pensioners but with no one else) raises all kinds of legal issues, including equal proteciton and the prohibition against bills of attainder.


  22. - wordslinger - Wednesday, Jul 23, 14 @ 1:08 pm:

    Look, the GA and governor did the bidding of the Civvies and Tribbies to get them off their back.

    I doubt if they ever really thought it would pass Constitutional muster.

    Maybe the Civvies can contract for a new Sidley “opinion” and waste a few more years chasing their tails.


  23. - Norseman - Wednesday, Jul 23, 14 @ 1:19 pm:

    Well said Word!


  24. - walker - Wednesday, Jul 23, 14 @ 1:25 pm:

    Better sooner than later. Provided they have enough time to get it fully reviewed.

    A thorough understanding of the state budget’s structure, restraints and obligations, would be helpful in deciding this “police powers” issue. That is often missing with a quick or shallow review. Even among usually well-informed commenters.

    It certainly appears to be a long shot for the state this point.


  25. - Just Trying to Survive - Wednesday, Jul 23, 14 @ 1:43 pm:

    RE: one class of citizens taking the hit for all the state’s debts

    In the meantime, so much damage has been done. A number of students I know, wanting to pursue teaching have changed their mind. They wonder at the hatred and resentment broadcast in newpapers, online and in communities aimed at teachers……….who’d want to step into that? A mid career teacher I met with last week is meeting with TRS to see what early penalties/options would be. Not feeling support anymore, feeling it’s a career that’s turned ugly. If pension “reform” is not upheld by the courts, it’s not like everything can go back to normal anymore for lots of teachers at least. More damage has been done than anyone outside the profession can even imagine.


  26. - Michelle Flaherty - Wednesday, Jul 23, 14 @ 1:51 pm:

    I had it backwards. My bad.


  27. - Anonymous - Wednesday, Jul 23, 14 @ 2:05 pm:

    it is a “dog and pony show”. The State always knew they had no chance, but politically this was the approach they needed to take. Now, what else could AG to do but defend the law as best she can. The pension law gets thrown out like everybody knows. Police powers argument is a joke since the state has chosen to constitutional protect a pension and declare it a contract and to the extent a crisis of any kind exists it is self made by the state. This is a political solution playing out for a legal and moral issue.


  28. - facts are stubborn things - Wednesday, Jul 23, 14 @ 2:07 pm:

    Sorry left off my nickname.

    it is a “dog and pony show”. The State always knew they had no chance, but politically this was the approach they needed to take. Now, what else could AG to do but defend the law as best she can. The pension law gets thrown out like everybody knows. Police powers argument is a joke since the state has chosen to constitutional protect a pension and declare it a contract and to the extent a crisis of any kind exists it is self made by the state. This is a political solution playing out for a legal and moral issue.


  29. - anon - Wednesday, Jul 23, 14 @ 2:14 pm:

    @Just trying. A lot of teachers comment on these issues as if only the teaching community is impacted. Every public employee in Illinois has been subjected to public bashing and attempted pension theft. To the extent that Illinois and its political subdivisions have reaped the benefit of a workforce willing out of some public spirit-mindedness to work for less pay even with the pension counted in, those days may be ending. What young person would want any public sector career under the current circumstances? Who wants an environment where you are constantly told you must do more with less, where you are scapegoated and where you fear being stiffed on your pay/benefits for political expediency? There are going to be long term repercussions.


  30. - Norseman - Wednesday, Jul 23, 14 @ 2:19 pm:

    Just Trying to Survive,

    You’re correct that teaching and public service has taken such a bad rap - not to forget that new employees will receive smaller benefits, the quality of these folks will diminish. The policy folks don’t care right now and their replacements won’t care until they see a crisis.


  31. - Rosa - Wednesday, Jul 23, 14 @ 2:28 pm:

    “@Just trying. A lot of teachers comment on these issues as if only the teaching community is impacted. Every public employee in Illinois has been subjected to public bashing and attempted pension theft. To the extent that Illinois and its political subdivisions have reaped the benefit of a workforce willing out of some public spirit-mindedness to work for less pay even with the pension counted in, those days may be ending. What young person would want any public sector career under the current circumstances? Who wants an environment where you are constantly told you must do more with less, where you are scapegoated and where you fear being stiffed on your pay/benefits for political expediency? There are going to be long term repercussions.”

    Correct

    We are treated so bad and many people are running for the doors.

    The brain drain is really going to hurt the State.

    I wish that I could leave. If it gets worse, I will. I am a CPA and a MBA. I can’t take much more of this.

    They are making our day to day work life hell.


  32. - anon - Wednesday, Jul 23, 14 @ 2:30 pm:

    Yes, the pension benefits in the past have reduced turnover and fostered a highly experienced work force with a lot of institutional knowledge. Under the Tier 2 when you will get LESS than Social Security after paying in more, it’s going to turn into a revolving door of people with little experience who have a disincentive to stick around. No way services can be provided without some major catastrophes under those circumstances.


  33. - Rosa - Wednesday, Jul 23, 14 @ 2:48 pm:

    Even tier 1 people like myself might leave because the work environment has gotten so toxic. I am on maternity leave an don’t want to go back.

    They treat us so bad. The work environment has deteriorated over my 12 years and if it continues, I could not deal with it.

    They want to chase all tier 1 employees away by their constant harassment.

    Let us work. Let us do our jobs. Stop treating us like criminals and bullying us day after day after day.

    My sister is a teacher and all public employees are being treated terribly.

    People think that public employees have it easy. I tell you that we do not. Treat us humanly. Treat us as you want to be treated. I have coworkers who came from the private sector who are going back to it. They say that the State is just gotten too much for them.

    I might do the same.


  34. - orzo - Wednesday, Jul 23, 14 @ 2:57 pm:

    Even if the so-called “police powers” argument is a legitimate defense to a constitutional challenge I don’t think there is a valid argument that it would apply here. How can the legislature create the crisis by underfunding, then use the crisis they created as a defense to what on its face is a clear violation of the pension clause? The GA should start working on the next approach, since this one is on life support.


  35. - facts are stubborn things - Wednesday, Jul 23, 14 @ 3:14 pm:

    @ orzo - Wednesday, Jul 23, 14 @ 2:57 pm:

    Well said, and the ISC all but said that exact thing in their ruling…..”In light of the constitutional debates, we have concluded that the provision was aimed at protecting the right to receive the promised retirement benefits, not the adequacy of the funding to pay for them.”

    The debates at that time (1970) were about the very underfunded pension system that existed in a way such that people doubted the states willingness to pay what was then a benefit that the GA and Gov. could have changed by passing a new law. It did not have contractual and constitutional standing. The pension clause was put into play for the very reason we have today.


  36. - PublicServant - Wednesday, Jul 23, 14 @ 3:48 pm:

    While previous to the Kanerva ruling, Judge Belz stated that he would hear all issues and rule on them all, at a status hearing yesterday he stated that he would entertain a new motion for summary judgement in light of the Kanerva ruling.

    The state is essentially done. There’s little doubt SB1 will be ruled unconstitutional. Going forward, with the 94 pension ramp at it highest ramp up point, I’m hoping they don’t revisit that law. With the state held to a repayment schedule, they can’t go pension-dipping again.

    Also, contrary to Federalist’s argument that just as pensions were used to finance other state spending, those programs can now suffer funding to pay for the pension repayment. He forgets to mention the obvious choice, which is to raise the revenues that have been allowing Illinois citizens have their cake without adequately paying for it for decades. For just as clearly as SB1 was unconstitutional, any reasonable person looking at Illinois flat 3% tax of the last decades, when compared to our neighbor’s income tax structures, would have to conclude that we have had a clear structural revenue issue here.


  37. - Anonymous - Wednesday, Jul 23, 14 @ 3:53 pm:

    It is very sad that the GA practices Political Leadership, rather than Leadership. We need people who will do what is right. Unfortunately, most of the smart leaders wont get into politics. In the past, the line workers and middle management kept things running. For over a decade, any smart person would think twice before taking a management position, long hours, no raises and LOTS of headaches. We are seeing the results now and it will only get worse. I wish I had the answer.


  38. - anon - Wednesday, Jul 23, 14 @ 4:03 pm:

    One of these days, maybe they will try to figure out how to meet their obligations rather than trying to figure out how to get out of them. If they would have done that a few decades ago, we would probably be in good shape today.


  39. - sal-says - Wednesday, Jul 23, 14 @ 4:56 pm:

    - facts are stubborn things - Wednesday, Jul 23, 14 @ 11:21 am:

    == We get the government we deserve. ==

    I’ve always thought that and said that.

    In re-thinking, maybe not. Most voters don’t visit this bloggie site; or others that have good dialog & back and forths; but do see all the expensive media ad buys; negative ads; promise a low cost or cost free ’solution’ to problems; maybe read media editorials & commentaries and believe them.

    Do less informed folks deserve the crappy politicians and crappy government, or are they just maybe too little informed and ‘go along’ with what they easily see and hear?

    Too much for my feeble brain today.


  40. - RNUG - Wednesday, Jul 23, 14 @ 4:58 pm:

    - facts are stubborn things - Wednesday, Jul 23, 14 @ 2:07 pm:

    and

    - PublicServant - Wednesday, Jul 23, 14 @ 3:48 pm:

    You pretty much summed it up. We’re just seeing the rest of the game play out …

    Assuming Judge Belz does issue a summary ruling in favor of the retirees, it could move quickly (or not) through the various superior court(s). As long as the stay is in place, the speed of the case really doesn’t matter in terms of harm to the retirees since it remains status quo.

    As others have stated, the only obvious argument left to hold a hearing on is the question of whether or not SB1 is a valid use of “police powers”. IMO, it’s not. Judge Belz might want to have such a hearing, then rule and make the point it is not a legitimate use. That would be my personal preference since it should slam the door shut on future attempts by the politicans to negate the pension debt.

    I’m also going to stick my neck and and say if SB1 is ruled unconstiutional at the trial level, and not reversed (or skipped) at the appellate level, that the ISC will just refuse to hear the case, thus affirming the trial court decision. At that point the only reason for the ISC to hear the appeal would be to drive their decision home with a seldgehammer.


  41. - Late to the Party - Thursday, Jul 24, 14 @ 7:07 am:

    Pacman at 12:11 pm: ” maybe someone can explain how the state can attempt to exercise police powers in respect to pensions to the exclusion of all other debt (bonds) and programs?”

    This was just the beginning; a trial balloon. If the state had been allowed to stiff retirees, the other debt holders would have been next.


  42. - facts are stubborn things - Thursday, Jul 24, 14 @ 7:17 am:

    @ sal-says - Wednesday, Jul 23, 14 @ 4:56 pm:
    =Do less informed folks deserve the crappy politicians and crappy government, or are they just maybe too little informed and ‘go along’ with what they easily see and hear?=

    Sal, very good points and I understand what you are saying. People don’t deserve this government in the sense that they are good people and deserve better; however, I believe it is our duty to stay informed and to understand that there is no “free lunch” so to speak. Yes, fine folks going about there lives, but and until they demand of their representatives to take reasoned, ethical and legal positions we will continue with what we have.


  43. - Mason born - Thursday, Jul 24, 14 @ 7:30 am:

    @ sal-says - Wednesday, Jul 23, 14 @ 4:56 pm:
    =Do less informed folks deserve the crappy politicians and crappy government, or are they just maybe too little informed and ‘go along’ with what they easily see and hear?

    That is precisely why they deserve what they get. The ones who don’t are the informed voters who take the effort to get respectable candidates to have their votes overwhelmed by the uninformed. It really isn’t hard to peruse Cap Fax once a day 15 minutes top, skip a few kitty videos for the love.


  44. - facts are stubborn things - Thursday, Jul 24, 14 @ 7:42 am:

    - RNUG - Wednesday, Jul 23, 14 @ 4:58 pm:

    Thanks, as always. I kind of think that after Belz rules it will be “fast tracked” to the ISC. I think the ISC wants this case, and they will want (as you described) to drive it home once and for all! I think a true “police powers” argument might have some traction, but the state does not have that. They have a political crisis not a pension crises. They just want to stick it to the pension system so they don’t have to face voters with higher taxes and or cut non constitutionally protected programs. It is their political futures that they fear are in crisis and not the state’s. The ISC indicated that paying the benefits was important and not the funding — consistent with past ruling. That does not mean that the justices would not side with the state if they really had no money at all and were in danger of not being able to survive as an entity. The key to this whole police powers argument is not that it is not a viable legal argument, it is that the state does not have a crisis that would require a use of police powers. If the ISC allowed the state to use their police powers to fix a crisis of their own making then nothing in the constitution would mean anything. The state could just create it’s own mess and then do what it wanted.


  45. - Wake Up! - Thursday, Jul 24, 14 @ 10:02 am:

    You only get to the police powers argument if you find that law complies with the pension clause. The police powers argument arises when you look at the contracts clauses in both the state and federal constitutions.


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* Report: Laws holding back juveniles with criminal records
* Bernard Schoenburg: PAC-leader Proft given 'public affairs' radio slot by policy institute


* Illinois Marathon 2016
* Danville murder victim identified
* 04-30-16 Saturday Sports Talk
* 04-30-16 Coffee with The Plant Experts
* PODCAST: The Roofing Dog 4-30-16
* PODCAST: Daniel E. Holder & Associates 4-30-16
* PODCAST: Urbana Business Association 4-30-16
* PODCAST: Market at the Square 4-30-16
* PODCAST: Illini Tutoring 4-30-16
* Business schedules weekend sale


* Bears move up, take W.Va. linebacker in fourth round
* Lake Zurich ducklings rescue a hit on social media
* Cubs-Braves Saturday game postponed because of rain
* Batavia foundation's charity Fox Trot draws more than 325 participants
* Giants draft Clemson linebacker Goodson in fourth round

* House lawmakers overcome hurdle on key tra...
* Rodney Davis talks funding with Bloomingto...
* The agency that fought Illiana gets a new ...
* Rep. Dold takes educational cruise down Ch...
* Lawmakers decry high turnover rate of VA h...
* CBD Oil, and politics
* Simon considering state Senate bid
* Killer Congressman Tom MacArthur trying to...
* Shutdown? State may not notice
* Rep. Bob Dold

* Cahokia Mounds Could Become National Monum......

* U.S. Sen. Mark Kirk: Why Gitmo can't be cl......

* Weyermuller: When did Drake U turn against conservatives like Turning Point USA?
* Citizen journalist David Daleiden faces continued legal jeopardy
* Elizabeth Warren endorses Duckworth for U.S. Senate
* Tennessee makes it legal for counselors to practice religious beliefs
* Biga: The Eloi Arrive a Tad Early
* Where's Weyermuller? With Ozzie at Special Olympics 2016 kickoff
* Teachers (Deborah Meier).
* Straight out of Brooklyn.
* Tony at the Red Line Tap.
* Teachers (Margaret Mead).


* Emergency Management Officials, National Weather Service Encourage Winter Preparedness - November is Winter Weather Preparedness Month in Illinois
* Keep Your Family Safe This Winter - November through February are leading months for carbon monoxide related incidents
* Governor Takes Bill Action
* Illinois Department of Labor Director Hugo Chaviano Awards Governor’s Award for Contributions in Health and Safety to the Illinois Refining Division of Marathon Petroleum Company LP
* State Regulator Elected Treasurer of Interstate Medical Licensure Compact




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