55 Comments - Soccermom - Wednesday, Sep 18, 13 @ 2:19 pm: I am shocked that the judge does not understand the process. - Soccermom - Wednesday, Sep 18, 13 @ 2:20 pm: No snark — I’m serious. Clearly this is going to be grounds for an immediate appeal no matter the outcome. - wordslinger - Wednesday, Sep 18, 13 @ 2:30 pm: Soccermom, 10 years as a court reporter, and there were plenty of people I were shocked were judges, believe me. But shouldn’t this hearing be held in a more appropriate venue in San Salvador or Teguigalpa? - Foodie - Wednesday, Sep 18, 13 @ 2:32 pm: Maybe someone should educate the judge with some Approp 101 before they continue. - Just Observing - Wednesday, Sep 18, 13 @ 2:35 pm: === Clearly this is going to be grounds for an immediate appeal no matter the outcome. === Appeals are not always easy to come by, even if something goofy happens in the trial. Just because the Judge doesn’t understand the issue now, doesn’t mean he won’t by the end of the case. - Norseman - Wednesday, Sep 18, 13 @ 2:36 pm: Sounds like the judge didn’t bother reading the briefs - sheesh. - Just Me - Wednesday, Sep 18, 13 @ 2:43 pm: A Cook County judge that doesn’t understand the Illinois Constitution?!?!?! I’m shocked, SHOCKED, I say to find incompetence in our state’s judicial system. At least he is a loyal Democrat which is probably how he got his seat. - cover - Wednesday, Sep 18, 13 @ 2:45 pm: Two months after the lawsuit was filed, and the judge still doesn’t understand the mechanics of the Governor’s line-item veto authority? Both sides should be nervous about the outcome, because the ruling may make no legal sense either way. - Nearly Normal - Wednesday, Sep 18, 13 @ 2:50 pm: Anybody say the magic word “unconstitutional” yet? - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:03 pm: Don’t take much from the judges questions as it relates the outcome of the case. I suspect the judge does understand or will in short order that a veto becomes effective when issued. Questions from a judge can be asked for many reasons and often are not what they seem. - dawn - Wednesday, Sep 18, 13 @ 3:12 pm: Has anyone heard about the retire healthcare hearing yet? - padraig - Wednesday, Sep 18, 13 @ 3:20 pm: Judge Cohen is married to Susan Sher, former Counsel to First Lady and BFF to Valerie Jarrett, and former Corp Counsel City of Chicago - The DuPage Bard - Wednesday, Sep 18, 13 @ 3:21 pm: I would say to Governor Quinn, you’ve got your free primary mend the fences and take the draw. The GOP will kill each other and spend most of their dollars. He’s setting his own majorities to get slammed in general elections next year. Pensions aren’t the only thing he wants done, he will need those majorities once the pension fix comes in, he’s not getting an increase in minimum wage by losing super majorities. Bobby Fisher- Take the draw. - Rich Miller - Wednesday, Sep 18, 13 @ 3:22 pm: padraig, I’m not sure any of that is relevant to this particular case. - Skeeter - Wednesday, Sep 18, 13 @ 3:27 pm: If the judge does not understand the process, the job of counsel is too slowly and methodically go through it until the judge does understand. Was the judge an expert in the field? Probably not. Counsel’s job is to make the judge an expert. From the notes, it sure seems that the judge was focusing on the issue of whether the matter was ripe, which is a question I’ve raised since the start. Even if there was damage done by the AV, the plaintiffs still had a procedure to repair it. Rather than going that route, they filed suit. I’m not buying it, and I don’t think the judge does either. One last note — the one week delay may be for two reason. 1) He may have heard new information in the hearing and wanted to review the caselaw; or 2) He did not view the matter as urgent, and expecting an appeal, wanted to make sure an opinion was drafted. The lack of urgency, if that’s the reason rather than that he heard something new, is not a good sign for plaintiffs. - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:36 pm: @Skeeter - Wednesday, Sep 18, 13 @ 3:27 pm: Good post, but help me to understand how it changes anything if the GA has already tried to overide the veto. They still have to file suite to recover back pay which would still have to go to the issue of constitutionality. Do you give any merrit to the fact that if the GA feels the overide is unconsitutional then don’t dignify it with an overide. - Skeeter - Wednesday, Sep 18, 13 @ 3:42 pm: Facts, “Do you give any merrit to the fact that if the GA feels the overide is unconsitutional then don’t dignify it with an overide” No, I really don’t. It is not about dignity. It is about whether procedures exist for the plaintiffs’ to obtain a remedy without involving the court and about whether they complied with necessary procedures before coming to court. - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:45 pm: @Skeeter - Wednesday, Sep 18, 13 @ 3:42 What if the GA had overode the veto, should they not still go to court to make sure to stop what they beleive is an illgal procedure from the Executive branch? What about the back pay? How would the GA get that back without going to court? - Rich Miller - Wednesday, Sep 18, 13 @ 3:47 pm: ===What if the GA had overode the veto, should they not still go to court=== The case would be moot by then. - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:49 pm: Rich, What about the back pay? - Skeeter - Wednesday, Sep 18, 13 @ 3:49 pm: “What if the GA had overode the veto, should they not still go to court to make sure to stop what they beleive is an illgal procedure from the Executive branch?” No. There would be no case or controversy. Courts rarely issue opinions where they cannot issue an order with a remedy. If they felt it was illegal, I could imagine they could move to impeach him, but I’m not remotely an expert in that area. - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:51 pm: I think it would be bad presendent to overide the veto that you feel is illegal and then go to court for the back pay. - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:52 pm: Skeeter - Wednesday, Sep 18, 13 @ 3:49 Good points all. What about the back pay? How would the GA get that without going to court? - Skeeter - Wednesday, Sep 18, 13 @ 3:53 pm: By the way, nothing here should be construed as backing the action taken by the Gov. I found it ridiculous. Rather than lead, he tried a stunt. Stuff like this is why I don’t see myself voting for him. But just because he’s wrong as his act doesn’t make it right to rush to court. - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:56 pm: @Skeeter - Wednesday, Sep 18, 13 @ 3:53 pm Totaly agree with you. My big issue is still how would the GA get the back pay without going to court. If you tired overide and won still have back issue to litigate, and if you try to overide and loose — then you run to the courts and say illegal? Individual members of the GA have not ability to overide. - facts are stubborn things - Wednesday, Sep 18, 13 @ 3:59 pm: @Skeeter - Wednesday, Sep 18, 13 @ 3:53 pm: = But just because he’s wrong as his act doesn’t make it right to rush to court = I don’t think it is a matter of being “wrong” it is a matter of having acted contrary to the Constituion and his oath to uphold it. - D P Gumby - Wednesday, Sep 18, 13 @ 4:00 pm: GA is in a constitutional trick box. If they override, they have no controversy to take to court and if they don’t override, the case may not be ripe because they have not exhausted all their remedies short of court. This is what Skeeter is getting at. And what the judge is trying to figure out by quizzing the attorneys–he appears to be trying to see if there were any other options that could have been followed that were not explored in any of the briefs. That doesn’t necessarily mean he doesn’t understand what was in the briefs. The purpose of oral argument is to give the judge a chance to explore other points. - Raising Kane - Wednesday, Sep 18, 13 @ 4:01 pm: facts, They will get the backpay, because the override or court order should restore the appropriation line. - facts are stubborn things - Wednesday, Sep 18, 13 @ 4:06 pm: @Raising Kane - Wednesday, Sep 18, 13 @ 4:01 pm It is my understanding that an overide would not restore the back pay. This is according to Cullertons attorney. - facts are stubborn things - Wednesday, Sep 18, 13 @ 4:08 pm: What if the GA tried to overide and could not. How would the individual member get paid? What remedy would the individual member have. - Skeeter - Wednesday, Sep 18, 13 @ 4:10 pm: “I don’t think it is a matter of being “wrong” it is a matter of having acted contrary to the Constitution and his oath to uphold it.” Which may be grounds for impeachment, but not, if there was an override, for a lawsuit in the Circuit Court. - Skeeter - Wednesday, Sep 18, 13 @ 4:12 pm: Facts, If the override failed, there absolutely would be grounds for suit. All the hoops have been jumped through, and the plaintiffs have their injury. - Rich Miller - Wednesday, Sep 18, 13 @ 4:13 pm: ===Which may be grounds for impeachment=== The only grounds you truly need under the Constitution is a three-fifths majority vote. Just sayin… - facts are stubborn things - Wednesday, Sep 18, 13 @ 4:15 pm: @Skeeter - Wednesday, Sep 18, 13 @ 4:12 pm: Good point, but if Cullerton’s lawyer is correct that back pay can only be recoverd by going to court then aren’t we rigt back to why not go to court now. - Norseman - Wednesday, Sep 18, 13 @ 4:15 pm: === Author: facts are stubborn things Comment: @Raising Kane - Wednesday, Sep 18, 13 @ 4:01 pm It is my understanding that an overide would not restore the back pay. This is according to Cullertons attorney. === Facts, do you have a source for that comment by Cullerton’s attorney? I was of the same opinion as Raising Kane. - facts are stubborn things - Wednesday, Sep 18, 13 @ 4:16 pm: @Norseman - Wednesday, Sep 18, 13 @ 4:15 pm: Yes, good question. In the tweets above you will find where the judge asked Cullertons attorney why you did not just try and overide and he answered because the courts are the only remedy for uptaining the back pay. - Spidad60 - Wednesday, Sep 18, 13 @ 4:17 pm: I’m beginning to understand why there is confidence in the legislative and executive branches that pension benefit diminished would be found constitutional - Norseman - Wednesday, Sep 18, 13 @ 4:17 pm: === Author: Skeeter Comment: Facts, If the override failed, there absolutely would be grounds for suit. === And then the Gov. would argue that the General Assembly has agreed with him that they shouldn’t get paid and the issue is moot. - facts are stubborn things - Wednesday, Sep 18, 13 @ 4:19 pm: Below is paste from tweets above. Atty Prendergast for Cullerton: Court decision is only way lawmakers can get paychecks lost in Aug & Sept. 2:11 PM Charles Thomas @CThomasABC7 - anon - Wednesday, Sep 18, 13 @ 4:19 pm: The feed links to an article describing the Illinois Supreme Court oral argument today in the State health care benefits case. The Court has posted a video from the argument on its website: http://www.state.il.us/court/Media/On_Demand.asp - Norseman - Wednesday, Sep 18, 13 @ 4:19 pm: Thanks Facts. It’s a busy blog day and I must be skimming too quickly. - facts are stubborn things - Wednesday, Sep 18, 13 @ 4:25 pm: @- Norseman - Wednesday, Sep 18, 13 @ 4:19 pm: =Thanks Facts. It’s a busy blog day and I must be skimming too quickly = Totaly understand. I guess based on all the excellent points all are making this issue may be key. - MikeMacD - Wednesday, Sep 18, 13 @ 4:27 pm: “The only grounds you truly need under the Constitution is a three-fifths majority vote.” I can’t remember, how much is needed for an override? Sorry, couldn’t resist. On another note, it seems the GA could eliminate this from happening in the future by exempting the constitutionally protected salaries from needing an appropriation. This to me is what the plantiffs in this case are arguing; that the appropriations for these salaries are ceremonial acts rather than legal. - MikeMacD - Wednesday, Sep 18, 13 @ 4:30 pm: Impeachment. Oops, I just checked, my copy of the constitution requires majority in the house and two thirds in the senate. - Rich Miller - Wednesday, Sep 18, 13 @ 4:33 pm: MikeMacD, I stand corrected. It’s been a while since I had to know such things is my only defense. lol - facts are stubborn things - Wednesday, Sep 18, 13 @ 4:37 pm: I have to go for the day, but really enjoyed the great give and take. Good points for sure. If back pay can only be restored by court then seems to support — why not just go to court and get it over with. If back pay can be resored by overide then only remaining argument I would have is to not “sanction the vetoes legality” by using the overide. Also feel if you try for overide and loose it seems you you were fine with legislative solution until you could not get it done and then you are runing to the courts for help. Understand the argument for need to try the overide remedy before you can claim you have been injured. Certainly understand the other view points that were very well presented. I guess that is why it was in court today. - Archiesmom - Wednesday, Sep 18, 13 @ 4:39 pm: For a blog on the Kanerva retiree health care argument today, you also can go to http://www.appellatestrategist.com - dang - Wednesday, Sep 18, 13 @ 4:52 pm: Lol. Impeachment, well if they did it before the election, PQ would win for sure! *don’t have my copy of il constitution handy, but that comment assumes someone that was impeached can be governor again, with a vote of the people. Man, pq needs to cut that deal. Get ga to impeach you, to win the election, keep democrats in control! - A guy... - Wednesday, Sep 18, 13 @ 5:15 pm: –Impeachment. Oops, I just checked, my copy of the constitution requires majority in the house and two thirds in the senate.– That’s the legal requirement. The practical requirement is needing somewhere closer to 80% of the public to agree. It’s a lot easier to put a Governor in prison, than to impeach them. Blago hit the daily double. Quinn still has “the people” with him on this move, unconstitutional or not. They’re angry at state government no matter which side of the pension reform side they’re on. Before my pal, W/S says “I’m representing more than myself here, and on what basis”, it’s what I read and what I hear everywhere including this blog. BTW, our first crack at this topic was on the first thread of today’s CF. At noon, I suggested JBTs interpretation (actually her counsel from the AG office) would have an effect on this ruling. I’m surprised it’s as big an effect as the Live Twitter Blog suggests it was. - Just Me - Wednesday, Sep 18, 13 @ 5:25 pm: Rich, I think what Padraig was trying to say is that this judge is a judge because of his connections, not because he has any idea what he is doing. - Robert Lincoln - Wednesday, Sep 18, 13 @ 8:22 pm: To practice in front of Judge Neil Cohen is a pleasure. He is thorough and explores all the issues and listens to both sides. Those who have commented that the judge was exploring the issues and narrowing issues are correct. Just because a person has a good pedigree does not mean he is not qualified. It may simply mean that he hangs out with an intelligent crowd. If he wanted to use connections, he would be in a better job than a Cook County Judge. - RNUG - Wednesday, Sep 18, 13 @ 9:07 pm: Just finished watching to the Kanerva v Weems video and reading the analysis by Kirk Jenkins. I won’t belabor the items point by point but just say I don’t necessarily agree with Jenkins’ analysis but we’ll eventually see how accurrate his reading is. The one thing that really struck me was the arguments used by the State re what is protected by the Pension Clause. The State’s attorney made every one of the arguments a lot of us have been making that the pensions themselves can’t be diminished in any way, shape or form. Whoever ends up suing over SB0001, SB2424 or whatever gets passed can just use all the State’s own arguments to make the point the pensions can’t be diminished. - Norseman - Wednesday, Sep 18, 13 @ 9:25 pm: RNUG, there also is a lot of nice arguments made in the legislative salary briefs that can be useful in a pension challenge. - RNUG - Wednesday, Sep 18, 13 @ 9:33 pm: Norseman, Yes there was … - RNUG - Thursday, Sep 19, 13 @ 9:02 am: Some overnight thoughts on the Kanerva v Weems health insurance case. 1) The ISC, which probably doesn’t want to be in the middle of the pension clause arguments, could use this case to send a clear message that the pensions can’t be altered after the fact. 2) The questioning seemed to indicate that the judges had some problems with the points raised by both sides. If I had to guess on the ruling, it might be a split one, returing the case to the circuit court, giving the state the right to minimally alter the health insurance but finding that (at minimum) access to the State’s group health plan at a reasonable cost is, in fact. a contractually and constitutionally protected right … while leaving the details of exactly what and how to be determined by the circuit court. If the court ruled as outlined in #2, that takes any ‘consideration’ for health insurance access off the table, negating Cullerton’s SB2424 contractual alteration argument. Some expanded comments (as done in previous pension cases) about what is protected could also dispel the notion of any ‘police powers’ argument. Sorry, comments for this post are now closed.