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Lemmegetthisstraight. And I’m not commenting on pro/con of Quinn’s move.

But when it comes to the promised compensation of our state legislators, we are focused urgently on the constitutionality of cutting it.

But when it comes to slashing the promised compensation of a half-million teachers, emergency responders, and public service workers with their life savings in a state pension system some say, “Meh. who knows. Let’s just do it and worry about constitutionality later.”

Aviva works for the Illinois Federation of Teachers, so she’s a bit biased, but I don’t disagree at all.

* Also, Attorney General Lisa Madigan announced within hours that she’d be looking into the constitutionality of the governor’s line-item veto. But AG Madigan has yet to publicly voice an opinion on any of the proposed pension reform plans.

That seems rather duplicitous. Madigan’s office has said that she won’t comment on an issue that could be litigated. But Quinn’s veto could very well be challenged in court.

I’m not sure I quite understand this, other than the fact that she may run for governor and wants to stay out of the pension fight.

*** UPDATE *** From the attorney general’s office…

Rich, regarding Aviva’s Facebook comment and your post, we have not publicly weighed in on the governor’s actions on the legislative pay. We simply said we were looking at issue based on questions brought to our office and raised by our lawyers.

As you noted, we have not publicly weighed in on the pension matter given the anticipated litigation once a reform measure is passed. We anticipate possibly litigation involving the governor’s actions as well, which explains why we have simply indicated we are doing a legal analysis.

posted by Rich Miller
Friday, Jul 12, 13 @ 9:54 am

Comments

I don’t disagree in the slightest with with Aviva’s post.

Not that I have much confidence left in the system, but it’s times like these that I am pretty sure most of these clowns just make it up as they go; having no deference to law, constitutionality, morality, or any other sense of right or wrong other than polls.

Comment by iThink Friday, Jul 12, 13 @ 10:02 am
iThink, I think you’re right, except I don’t limit your theory to just “times like these”. Pretty sure it’s all the time.

Comment by PublicServant Friday, Jul 12, 13 @ 10:08 am
This situation just drips with irony! Very astute observation Ms. Brown’s part.

Comment by kerfuffle Friday, Jul 12, 13 @ 10:12 am
Ruling on the pension proposals which are continually “in process” and therefore not a finished product is different than advising/ruling on a specific and completed act.

Lisa must rule on this act by the chief executive which likely is unconstitutional and is a violation of the separation of powers inherent in the constitution.

Comment by Cassiopeia Friday, Jul 12, 13 @ 10:13 am
=== other than the fact that she may run for governor and wants to stay out of the pension fight. ===

I think this hits the nail on the head.

Comment by Norseman Friday, Jul 12, 13 @ 10:14 am
And so the dance begins. How to appear gubernatorial/electable without actually taking a position. Actually many Illinois politicians have practiced that art over the years.

Quinn the governor has taken his position. I can imagine Quinn the campaigner waiving his populist flag and referring folks to the (in)actions of his opponents at every whistle stop all the while reminding the crowd that he took action when everyone else was wanting to leave town. Flounder was right - “oh boy, is this great!” I’m gonna go out and buy some popcorn.

Comment by dupage dan Friday, Jul 12, 13 @ 10:18 am
- Ruling on the pension proposals which are continually “in process” and therefore not a finished product is different than advising/ruling on a specific and completed act.-

How is this a completed act when the GA has not yet availed itself of its own constitutional authority to override the Governor’s veto? By going to court, the GA is essentially asking the judiciary to save it from having to take a politically difficult vote. As for Lisa jumping in to offer an opinion on this while keeping a distance from offering an opinion on pension reform, Rich is spot on.

Comment by Nicksname Friday, Jul 12, 13 @ 10:18 am
Well, the cut in legislators pay is any easy constitutional issue. They have an established salary - it cannot be reduced. Slam dunk. I understand the analogy to the pension legislation, but that’s a heck of a lot more complicated, unless everyone is just going to agree to make Madiar the final word on what the pension clause means in this situation, and even Madiar doesn’t weigh in on whether health care is a protected benefit (I think it clearly isn’t). So it’s a bit of a cheap shot, but hey, I’d take it to if I were in Ms. Brown’s position.

Comment by Lycurgus Friday, Jul 12, 13 @ 10:21 am
She’s definitely biased but I don’t see the disparity.

She could argue that Quinn’s actions on pension and legislators pay both disregard the constitution.

She can’t argue that folks (legislators or press) are focused on constitutionality of raises but not pensions. Have they not read Cullerton’s infamous legal memo or heard dozens of comments by lawmakersand newspapers about the constitutional argument.

Comment by 1776 Friday, Jul 12, 13 @ 10:21 am
GA whines (or will whine) that the Constitution protects the members’ salaries. The same Constitution has even stronger language protecting pension benefits, but the GA is ok with cutting pension benfits. You can’t make this stuff up.

Comment by second street Friday, Jul 12, 13 @ 10:24 am
==other than the fact that she may run for governor and wants to stay out of the pension fight.==

This goes with my latest conspiracy theory as to why MJM hasn’t a problem with Quinn’s action. He wants quick passage on his bill so the pension mess will be out of the way, then Lisa can announce she’s running for governor without having to take a side.

Comment by Wensicia Friday, Jul 12, 13 @ 10:26 am
Not true. Both the House & Senate passed different bills, including SB1 that was re-written by her father MJM. These were concrete bills, including the re-write by MJM, that had serious constitutional questions. Even SB 2404, though supported by the unions, was possibly unconstitutional. This is particularily true of her father’s re-write of SB1. She has been avoiding this issue because she is trying to figure out what position will cost the least pain politically, as well as avoiding a possible public disagreement with her chief sponser, her father MJM.

“Ruling on the pension proposals which are continually “in process” and therefore not a finished product is different than advising/ruling on a specific and completed act”

Comment by AFSCME Steward Friday, Jul 12, 13 @ 10:28 am
Lycurgus @ 10:21 am:

The health insurance may not be protected under the pension clause. But since it had an offer and an acceptance (in writing no less as a state statute), it should be protected under straight contract law and may well also be protected under employment law as deferred compensation for services already rendered.

Comment by RNUG Friday, Jul 12, 13 @ 10:28 am
So let’s imagine that a legislator goes to court over this and makes the argument that, in addition to reducing the salary that he or she earned, this action also has an impact on his or her pension, because the pension is based on salary and pension benefits cannot be diminished.

And let’s imagine that an Illinois Supreme Court Justice views this as an opportunity to make a really, really clear ruling on the constitutionality of reducing public employees’ pension benefits, in a way that sweeps most of the current pension reform proposals right off the table.

Would this still count as a big win for the governor?

And do the legislators and their families lose their health insurance if they don’t get paid on Aug. 1? And will the legislators be eligible for unemployment?

Comment by Overthinking Friday, Jul 12, 13 @ 10:30 am
How can someone who wants to be Governor not be part of the pension fight ? Only in Illinois……

“she may run for governor and wants to stay out of the pension fight.”

Comment by AFSCME Steward Friday, Jul 12, 13 @ 10:31 am
Just for clarification, did PQ cut the GA’s salaries, or is withholding issuing checks until the pension issue is addressed? If the latter, he is not reducing the salaries, only deferring it.

Comment by Darienite Friday, Jul 12, 13 @ 10:32 am
This type of pressure, cutting salaries and/or other threats that are not part of the prescribed Constitutional powers regarding checks and balances, should NOT be part of the public policy process. What about the next legislation a governor might propose and it might fail……same thing? Throw a temper tantrum, cut the salaries and the next ” greatest threat of our time” becomes the volley? C’mon folks, our process should not be tainted with extortion related to paying salaries of anyone at anytime.

Comment by Seriously Friday, Jul 12, 13 @ 10:39 am
=== Just for clarification, did PQ cut the GA’s salaries, or is withholding issuing checks until the pension issue is addressed? ===

He vetoed the appropriation for those salaries from the state budget (he did not “suspend” them, as has been widely reported). They may only now be restored if legislators vote to override that veto or if a court orders the comptroller to pay the salaries in the absence of an appropriation.

Comment by Raymond Friday, Jul 12, 13 @ 10:42 am
Cullerton has consistently focused on the constitutional issue with pensions.

Comment by Roland the Headless Thompson Gunner Friday, Jul 12, 13 @ 10:45 am
Slightly off topic, but what do people think about the Tribune’s Kass column on Lisa Madigan not investigating the issues at Metra. I am not a big fan of Kass, and his writing on this article is still terrible, but he does raise some interesting points. Just curious about other’s opinions

Comment by Anonymous Friday, Jul 12, 13 @ 10:45 am
@Raymond. Thanks

Comment by Darienite Friday, Jul 12, 13 @ 10:47 am
=== I understand the analogy to the pension legislation, but that’s a heck of a lot more complicated ===

What is so complicated about:

“Membership in any pension or retirement system of the
State, any unit of local government or school district, or
any agency or instrumentality thereof, shall be an
enforceable contractual relationship, the benefits of which
shall not be diminished or impaired.”

It’s only complicated when you want to violate this provision.

Comment by Norseman Friday, Jul 12, 13 @ 10:49 am
===makes the argument that, in addition to reducing the salary that he or she earned, this action also has an impact on his or her pension, because the pension is based on salary and pension benefits cannot be diminished.===

There’s actually been a couple of direct court cases on whether a reduction in pay counts as a “diminishment.” The courts have said no, it doesn’t. The pension provision applies only to the pensions themselves. Changes in salary and retention aren’t included in that.

Now, that’s not to say that it’s not allowed under different provisions of the constitution. I completely agree with Ms. Brown’s assessment! I think instead of organizing the constitution by subject area, it should be done in order of how much we think we should follow them from Article I - “no question, cannot do anything that even remotely goes against what this says” down to Article X (or whatever) - “meh, it looks good on paper, but we can ignore it if it would make our lives as politicians better/easier.”

Comment by Katiedid Friday, Jul 12, 13 @ 10:52 am
@Roland - you’re right. His bill SB2404 was built on a constitutional framework. But it never got called in the house and the media focused more on Madigan vs Cullerton rather than the constitutionality of the proposals, which they can’t get enough of now

Comment by Cook Cty Friday, Jul 12, 13 @ 10:53 am
The state constitution says: “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

The word is benefits, plural. The benefits approved in state law are an annuity, cost of living adjustments to the annuity payments, and health insurance.

Like it or not, those are the benefits (plural) awarded to retirees by state law and under the constitution they may not be diminished or impaired.

Call it simple minded but I can’t read that sentence any other way. Benefits, not benefit.

Comment by DuPage Dave Friday, Jul 12, 13 @ 10:57 am
Katiedid @ 10:52 am:

Actually, I remember one court case that did focus on reduced pay (specifically, forcing an earlier retirement which lessened the base for a pension), and that was found in violation of the pension clause.

Comment by RNUG Friday, Jul 12, 13 @ 11:00 am
I think she’s got a good point, though it’s exaggerated. Legislators have been worrying about the constitutionality of it; that’s been the center of the tension between Team Cullerton and Team Madigan. There’s a reason that “meh, who knows”–no one does, and the only way to know is to litigate it.

It’s that or raise taxes (much as I’m sympathetic to pensioners, I’m also sympathetic to vendors who the state is de facto borrowing against by not paying them on time, to mental health cutbacks, etc). And even preventing a sunset of the most recent tax hike will be a mess.

Comment by whetstone Friday, Jul 12, 13 @ 11:04 am
The sun came up in the east this morning, so that must mean Lisa Madigan hasn’t made a decision, or doesn’t have an opinion, on anything.

It’s all part of the 12-year Grand Conspiracy.

Keep those checks coming.

Comment by wordslinger Friday, Jul 12, 13 @ 11:06 am
I’m sure one of Madigan’s judges will make the right call.

Comment by Mokenavince Friday, Jul 12, 13 @ 11:12 am
Heh, OK Vince, thanks for adding to the conversation. Let me try my hand at it too. I’m sure Madigan was just blowing smoke, and the supremes will rule SB1, or any facsimile, unconstitutional before the gov’s signature is dry…err, I mean, make the right call.

Comment by PublicServant Friday, Jul 12, 13 @ 11:19 am
“And let’s imagine that an Illinois Supreme Court Justice views this as an opportunity to make a really, really clear ruling on the constitutionality of reducing public employees’ pension benefits, in a way that sweeps most of the current pension reform proposals right off the table.” Go read the cases. The really, really clear rulings are already on the books. If Madigan, Cullerton, etc. want to ignore clear well-settled precedent from the courts, why would you think they would act differently just because Lisa Madigan says the same thing?

Comment by anon Friday, Jul 12, 13 @ 11:39 am
“We anticipate possibly litigation involving the governor’s actions as well, which explains why we have simply indicated we are doing a legal analysis.”

Did the AG do a legal analysis of the two big pension bills too, since they anticipate litigation there too?

Comment by Cook Cty Friday, Jul 12, 13 @ 12:01 pm
I think at this point if you asked Lisa Madigan, Axis or Allies in World War II you’d get a no comment. She’s reaching chelsea clinton/caroline kennedy levels when it comes to wanting to be a major part of the public discussion without getting any negative treatment or saying/commenting on anything.

She’s a grown woman, a 3x elected state official and can’t seem to find anything to say.

Comment by shore Friday, Jul 12, 13 @ 12:15 pm
DuPage — I won’t claim to know all the Pension Code, but to my knowledge there is no statutorily right to health insurance granted anywhere in the Pension Code, and that’s where it has to be in order to be protected as part of “membership in any pension system”. If it’s just in a CBA, it’s a contract right protected for the term of the contract by normal contract law, but that is not the same as saying its a constitutionally guaranteed right under the Art. XIII, Sec. 5. But that’s just my view. I’m not here to upset the inmates.

Comment by Lycurgus Friday, Jul 12, 13 @ 12:35 pm
Lycurgus @ 12:35 pm:

It not only was in the various contracts, it was actually encoded in either the Personnel or Insurance codes (I’m too lazy today to look up which of the two).

Comment by RNUG Friday, Jul 12, 13 @ 12:47 pm
Run Lisa Run!

Not donating before an official announcement, though.

Comment by Illinoisan Friday, Jul 12, 13 @ 12:53 pm
RNUG - interesting! I know there’s one case the Supremes said instituting a mandatory retirement age doesn’t affect the Pension Clause because it was a change to something outside the Pension Code (the Municipal Code, I think). There was another one that I’m not sure if it dealt with mandatory retirement ages or what it was that was ruled unconstitutional because it amended the Pension Code and therefore was a reduction.

Thanks for the heads up that there’s another one out there, though!

Comment by Katiedid Friday, Jul 12, 13 @ 1:49 pm
Katiedid; The case you are thinking of is Peters v. City of Springfield 57Ill 2d 142 (1974)

Comment by Pacman Friday, Jul 12, 13 @ 2:08 pm
Pacman - thanks for checking! That’s the first one; where they ruled it constitutional. The second one is Felt v. Board of Trustees (the one that was ruled unconstitutional). I’m not sure if that’s the one RNUG was referring to, though.

I do agree with anon (11:39 am) that there are a lot of cases out there that have made it pretty clear, if not 100% explicit and emphatic, that much of what’s being discussed is unconstitutional. Of course, the Supremes have the prerogative to change their mind, but the precedent and language are both pretty clear in my mind.

Comment by Anonymous Friday, Jul 12, 13 @ 2:47 pm
@2:47 p.m. Waiting for official AG opinion that each and every proposal is a Hail Mary pass hoping that the courts will reverse years of precedent.

Comment by anon Friday, Jul 12, 13 @ 2:57 pm
Sorry, anonymous 2:47 was me!

anon - agreed!

Comment by Katiedid Friday, Jul 12, 13 @ 3:46 pm
EXcellent insight by Ms. Aviva. And Lisa, given the status of her current position, IS still, nevertheless, playing politics with her approach–and just making sure the public understands that she just can’t resist looking into an “analysis” about something Governors have been doing year after year for a LONG time in Illinois and which ANY Governor has a Constitutional Right to do–issuing a Line Item Veto. Funny how Lisa’s office didn’t bother with doing that at ANY point over the many years she’s been the AG! But, suddently, Governor Quinn shows he IS a Street Fighter when he wants to be, pulls off the gloves and gets a LOT of credit/kudos/ and support from the PUBlic for doing it, and NOW all of a sudden Lisa’s office needs to study it! But, of course, there’s not even a DIStant odor of politics in her “interesting move” Right!!!

The REAL PROBLEM, as Ms. Aviva deftly points out, of course, is the PENSION CRISIS!!! What this is ACtually about, Lisa and Staff, is that the Man’s finally raised his Voice now in a MAjor way to just basically assert: “By God, FIX IT already!!!” Playing Politics with the People’s Money–to the Tune of nearly 2 BILLION Dollar$ in the coming Year Alone, is NOT something–ANY MORE–to be playing Politics WITH!!!

Comment by Just The Way It Is One Friday, Jul 12, 13 @ 3:51 pm