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* Attorney General Lisa Madigan has issued several official opinions over the years ranging from the “Applicability of the Right to Privacy in the Workplace Act to a Non-Profit Hospital,” to the “Felony Forfeiture of Pension Benefits,” to the “Senatorial Vacancy under the Seventeenth Amendment,” to the “Affect of Senate’s Sine Die Adjournment on Pending Gubernatorial Nominations.”
* Issuing an official opinion about whether the House and Senate’s pension reform proposals are constitutional would pose a conflict of interest for the AG because she’d be defending whatever passed. But such legal guidance would obviously be of enormous help to the General Assembly as it thrashes out the contentious issue going forward.
* The Question: Should Attorney General Lisa Madigan issue a formal opinion on the constitutionality of both proposed pension reform plans? Take the poll and then explain your answer in comments, please.
posted by Rich Miller
Friday, Jun 14, 13 @ 1:39 pm
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If either bill becomes law and she previously declared that it was unconstitutional then her team would have to defend the law despite the earlier delcaration. At the least, it would look bad.
I see merit to the AG writing opinions declaring what she beleves the current law to be but not on legislative proposals that she may later have to defend (whether she believes them to be constitutional or not).
Comment by Abe the Babe Friday, Jun 14, 13 @ 1:42 pm
From 15 ILCS 205/4:
Sec. 4. The duties of the Attorney General shall be–
* * *
Sixth - To consult with and advise the governor and other State officers, and give, when requested, written opinions upon all legal or constitutional questions relating to the duties of such officers respectively.
* * *
Eighth - To give written opinions, when requested by either branch of the general assembly, or any committee thereof, upon constitutional or legal questions.
======
If the AG shouldn’t give a legal opinion on this, then the above statute should be amended. IMHO.
Comment by Bill White Friday, Jun 14, 13 @ 1:45 pm
I originally voted no primarily because i don’t think her opinion will sway either side. However after Bill’s comment above i should have said yes.
Comment by Mason born Friday, Jun 14, 13 @ 1:48 pm
Of what use would such an opinion be when there’s no controlling Supreme Court precedent dealing with altering pension benefits for current employees?
Comment by The Elderly Man You Used to Love Friday, Jun 14, 13 @ 1:48 pm
Note the “when requested” language in the statute. 1) Doubtful she would get such a request from any of the parties involved, and 2) doubtful that whatever she issued would change any minds. That’s a “no” from here.
Comment by Ray del Camino Friday, Jun 14, 13 @ 1:49 pm
Voted no because anything she writes might be able to be used against the state.
I think everybody knows already that any pension reform has legal hurdles.
Comment by Robert the Bruce Friday, Jun 14, 13 @ 1:49 pm
The operative words being “when requested”.
Comment by WestSider Friday, Jun 14, 13 @ 1:50 pm
Yes. Would love to see her do it just for the pure political drama.
I’m sure AG’s past and present have taken positions on issue and then found themselves forced to argue the opposite point of view on behalf of the state in court. I think it’s happened on abortion-related issues a handful of times.
She could appoint a lawyer outside her office special AG to argue the case if she’s in conflict.
If she ever really wanted to prove her independence, she would issue an opinion finding the Speaker’s bill unconstitutional.
Comment by Thomas Friday, Jun 14, 13 @ 1:51 pm
I voted no and agree with both Abe and Bill White above. The obligation to defend what is passed on Constitutional grounds necessitates the AG not render an opinion prior to passage. The statute should be amended or there should be a more defined apolitical process for when the Legislature passes a statute that the AG believes to be indefensible on constitutional grounds.
Comment by Downstate weed chewing hick Friday, Jun 14, 13 @ 1:51 pm
No. She’d have a harder time running for Governor if she took her own position. Better to stay clean and dry on the sidelines and be able to say: “the State made me take this position, I’m not the legislature, it’s my job to defend whatever they do”.
Comment by Rudy Friday, Jun 14, 13 @ 1:54 pm
Yes, in hopes that a legal opinion will focus discussion on those salient legal issues which are important to a meaningful discussion and a practical solution.
Comment by Njardar Friday, Jun 14, 13 @ 1:56 pm
Not if no one requests her to. Change to yes if requested by the Governor or the Legislature.
Comment by Bobbysox Friday, Jun 14, 13 @ 1:57 pm
I voted yes. It could be an ultimate test that would allow her to demonstrate her independence.
Comment by Chicago Cynic Friday, Jun 14, 13 @ 2:00 pm
Yes but I don’t think she would. It puts her in an impossible position politically.
Comment by Calhoun Native Friday, Jun 14, 13 @ 2:02 pm
No, I don’t think it matters. The Court’s decision will trump the AG’s opinion anyway.
Comment by Stones Friday, Jun 14, 13 @ 2:02 pm
Under the rule of necessity she could both comment, and defend, since these duties are exclusive to her office.
The AG has special conflicts rules anyway. They are the only office which can represent both the plaintiff and the defendent in a law suit. If they can do that, then they can issue an oppinion and defend the case.
besides the attorneys who work on opinions are probably not the same ones who go into court.
Comment by Ghost Friday, Jun 14, 13 @ 2:02 pm
I don’t see how it would help.
Comment by Beardo Friday, Jun 14, 13 @ 2:03 pm
“Of what use would such an opinion be when there’s no controlling Supreme Court precedent dealing with altering pension benefits for current employees?” The pension “reform” people are perpetuating the myth that there is a lack of court precedent. Not true. Illinois courts have repeatedly held that pension rights cannot be diminished for current employees. The AG should not waste her time on a question which is already well-settled.
Comment by wtf Friday, Jun 14, 13 @ 2:03 pm
I say that the AG should do this for reasons already stated. Also, I’m no legal scholar but what would be problematic about affirmately opining on the constitutionality of a piece of legislation, having the legislation become law, and then defending the constitutionality of the law? It’s not like she would be expected to be impartial anyway.
Comment by Foxfire Friday, Jun 14, 13 @ 2:10 pm
If Sen. Cullerton is so confident the Senate bill is the constitutional option, why hasn’t he requested an opinion?
It seems negligent of the Illinois General Assembly to not seek the legal opinion of the AG on this matter.
But the obvious follow-up comment is, if the Illinois General Assembly weren’t habitually negligent, we wouldn’t be in this mess.
Comment by Carl Nyberg Friday, Jun 14, 13 @ 2:12 pm
Yeah… I gotta go with what seems to be the majority of commenters here. The AG has to be very careful about offering up opinions on matters unless she’s formally requested to do so. As a constitutional officer, the last thing she wants to do is insert her office into the political drama that goes on in the legislature… and she needs to immunize herself from those future conflicts of interest should she be called upon to defend something that she had previously opposed (or oppose something she previously defended.)
Comment by FoxValleyPride1 Friday, Jun 14, 13 @ 2:14 pm
I just would love to see her disagree with her dad…it would make for fun over a family dinner
Comment by illinifan Friday, Jun 14, 13 @ 2:16 pm
Great question, I didn’t vote.
I really am unsure about this one. Great arguments both sides. Don’t want to have to be in court defending a law that you said isn’t const. but it’s also in the job description of the AG apparently. . . hmm.
Comment by siriusly Friday, Jun 14, 13 @ 2:20 pm
I suspect she does not want to disagree with her father, since i think she will pass on running for governor and instead go to practice law with a big Chicago firm to make some big bucks. Being on good terms with the speaker won’t hurt that career choice
.
Comment by Publius Friday, Jun 14, 13 @ 2:26 pm
I think she should, if asked, but I can understand why she wouldn’t want to. That’s too bad, because it’s part of her job. I’d like to see Cullerton make the request too, but that would escalate the already rocky relationship between the chambers.
I think both chambers are generally highly reluctant to ask for opinions before hand. Once an opinion is offered, you can’t make it go away and you generally have to live with the results.
Be careful what you wish for.
Comment by 47th Ward Friday, Jun 14, 13 @ 2:32 pm
If I were Quinn I’d ask for that opinion, both because I’d want to see her answer, and to put Lisa on the spot.
Comment by Keyrock Friday, Jun 14, 13 @ 2:50 pm
Thanks for posting this, Rich. As always, it’s a good chance to hear a broad base of views and possibly learn a thing or two.
- - -
Yes.
She has provided such guidance before in similar situations. She is also our state’s highest elected legal official.
If it was OK then, it is OK now.
Comment by Formerly Known As... Friday, Jun 14, 13 @ 2:53 pm
Voted yes. Her opinion would help some the legislators on the fence(looking for cover to vote for are against) and the Supreme Court would have to respect her opinion, if, and when this case goes before the Supreme Court.
Comment by Downstater Friday, Jun 14, 13 @ 2:53 pm
No. If there is no formal request for such an opinion, don’t go there. A request like this would potentially just obliterate any working relationships between the chambers, then everybody goes into election mode, and then we get nothing done legislatively.
Comment by Judgment Day Friday, Jun 14, 13 @ 2:56 pm
The AG’s opnion does not have force of law, and given the possibility of her gubernatorial candidacy she would be in kind of a trick box with opining on either piece of legislation. On the other hand, it is the AG’s duty to give an opinion if asked. Frankly, there are probably many pieces of legislation that pass the GA that have questionable constitutionality, but no one asks that question of the AG.
Comment by Anonymous Friday, Jun 14, 13 @ 3:00 pm
Her opinion would sure help and she’s on the taxpayers payroll. We should not have to hire an outside firm.
The way we work it’s ready fire aim.
Comment by Mokenavince Friday, Jun 14, 13 @ 3:07 pm
—
The obligation to defend what is passed on Constitutional grounds necessitates the AG not render an opinion prior to passage.
—
couldn’t that be said about any law? If so what is the use of an AG then? Is she just a rubber stamp (whatever law the GA decides on I shall call constitutional?)
I mean “I can’t do my job if requested, because if I have to say its unconstitutional NOW, they may bring that up in court later…” Then why have that in the job at all. Hell if she told them something violated the state or fed constitution then they passed it anyway, yes should still have to defend it, But NO ONE would be able to hold the AG accountable for it failing constitutional muster.
Its like having a lawyer that wont give you legal advice when you present them with two options you have.
Comment by RonOglesby Friday, Jun 14, 13 @ 3:07 pm
The Illinois Supreme Court has already ruled on the constitutional question:
The People ex rel. Sklodowski vs. The State of Illinois, 182 Ill.2d 220 (1998)
From the courts decision:
“The court examined the defendants’ claims that the pension protection clause creates an enforceable contractual right only to receive benefits, not to control funding. The court concluded that the plaintiffs’ allegations of inadequate funding on the part of the State were insufficient to constitute an impairment of benefits in violation of article XIII, section 5 of the Illinois Constitution. The plaintiffs could not prove that the funds at issue were “on the verge of default or imminent bankruptcy” or that the benefits were in immediate danger of being diminished (182 Ill.2d at 233). While the Court recognized that article XIII, section 5 of the Illinois Constitution created an enforceable contractual right to benefits, such a right could not be divined to enforce the level of state contributions mandated by Public Act 86-273. The court found that the framers of the Illinois Constitution were careful to craft in the pension protection clause an amendment that would create a contractual right to benefits, while not freezing the politically sensitive area of pension financing.”
Comment by Fulfilled My Part of the Contract Friday, Jun 14, 13 @ 3:09 pm
We are guessing you will not find too many AG opinions on the question of constitutionalaity
But heck it is Friday, Oscar is finally in charge so let the good times roll!
Comment by CircularFiringSquad Friday, Jun 14, 13 @ 3:09 pm
Voted no because she has too many potential conflicts of interest.
Besides, if everyone in the GA would read Eric Madiar’s analysis, they would have all the very well background information they need.
Comment by RNUG Friday, Jun 14, 13 @ 3:12 pm
meant to say “well researched”
Comment by RNUG Friday, Jun 14, 13 @ 3:12 pm
Though I think it is her job to offer an opinion/advice, it would be interesting to see how she and dear old dad would handle the political ramifications.
I still think MM is holding back till his daughter announces her “being in” for the governor race, then, together, will unveil a new plan for pension reform, among other things.
Comment by Sunshine Friday, Jun 14, 13 @ 3:13 pm
If she were ever to come down on the side of the speaker’s bill being unconstitutional, I’d expect a bill eliminating or severely neutering the Office of the Attorney General to be sponsered by her father, since it’s obvious that he brooks no dissent without going for the jugular.
Comment by PublicServant Friday, Jun 14, 13 @ 3:14 pm
Yes, it might help clear some of the smoke from the GA proposals re: constitutionality and possibly show the better path.
Great question on an important topic.
Comment by Super Fly Friday, Jun 14, 13 @ 3:18 pm
Whew, tough question for Friday.
In the end, more reasons to vote No. No one has asked for the opinion, the law is settled IMHO, and she has several conflicts including the potential diminishment of her own pension benefit.
Comment by Arthur Andersen Friday, Jun 14, 13 @ 3:18 pm
The editorial writers in today’s Tribune recalled that the AG once wrote an opinion that the legislative diversion of pension money to other pet projects was legal. Said diversions contributed greatly to the pension mess. So, should Lisa step up to the plate in this instance? Yes.
Comment by Keyser Soze Friday, Jun 14, 13 @ 3:28 pm
If asked (as contemplated by the statute) the AG should issue an opinion.
However, it would look bad for the AG to give an unsolicited opinion and therefore no opinion should be issued absent a request.
Whether various leaders should ask for such an opinion is a very tricky question.
Comment by Bill White Friday, Jun 14, 13 @ 3:30 pm
I’d like to see a panel of retired Justices issue an opinion in addition to the Attorney General.
Comment by Cincinnatus Friday, Jun 14, 13 @ 3:31 pm
=== Thomas - Friday, Jun 14, 13 @ 1:51 pm:
Yes. Would love to see her do it just for the pure political drama ===
Yep.
Comment by dupage dan Friday, Jun 14, 13 @ 3:35 pm
In 2009, not only did the Attorney General issue an opinion on whether pending state legislation (SB285 among others) was Constitutional (U.S. Constitution in that case) or not in the face of likely litigation, the AG did a round of interviews on the subject.
Pretty good chance Roland Burris would have sued the state if the state legislature passed SB285 (a law holding a special election on April 7, 2009 to replace him) or anything else that might place someone else in his stead before the expiration of his appointed term.
And along the lines of @Bill White’s excellent post:
A slew of legal opinions issued by the Illinois Attorney General concerning controversial legislation and topics that may lead to litigation are available at www.illinoisattorneygeneral.gov/opinions/index1971topresent.pdf
The list of opinions issued on legislation and cases concerning Constitutionality alone spans 5 pages.
There are certainly a few other examples in there, but the Roland Burris situation stands out off the top of my head.
Comment by Formerly Known As... Friday, Jun 14, 13 @ 3:46 pm
I voted no, nothing like having your own words used against you at a later time!
Comment by Pacman Friday, Jun 14, 13 @ 3:48 pm
Would it help solve the pension crisis at this point? No, it would complicate it to no good purpose … so voted No
Comment by walkinfool Friday, Jun 14, 13 @ 4:03 pm