Friday, November 21, 2014
The Honorable John Belz handed down his ruling today from the 7th Judicial Circuit Court stating that pension rights are constitutionally protected for retirees in Illinois
The Honorable John Belz handed down his ruling today from the 7th Judicial Circuit Court stating that pension rights are constitutionally protected for retirees in Illinois.
"I am encouraged by the ruling made today by Judge Belz," said Bob Pinkerton, President of the Illinois Retired Teachers Association. "I remain hopeful that this decision, and the previous verdict made by the Supreme Court on Kanerva, will once and for all determine that Senate Bill 1 is unconstitutional and reiterate that the pension protection clause means pension benefits for current workers and retirees cannot be changed."
Senate Bill 1 would cut a retiree's cost-of-living adjustments, increase the retirement age of current employees and make unconstitutional cuts to the pensions of working and retired members of the Teachers' Retirement System. Now that Judge Belz has ruled on the case, the IRTA and other organizations involved in the lawsuit are preparing for the Attorney General's Office to continue the fight by taking their argument for the constitutionality of Senate Bill 1 to the Supreme Court (IRTA).
“Laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation… One legislative interference is but the first link of a long chain of repetitions” (James Madison).
“The power of changing the relative situation of debtor and creditor, of interfering with contracts, a power which comes home to every man, touches the interest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. This mischief had become so great, so alarming, as not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith…” (Chief Justice Marshall).
Eighty years ago, U.S. Supreme Court Justice George Sutherland stated: “The framers wrote the Contract Clause for the very reason that they feared emergencies unwisely tempt legislatures to loosen contract rights… [The] meaning of constitutional provisions [at both state and federal levels] is changeless; it is only their application which is extensible… [W]hatever tends to postpone or retard the enforcement of a contract, to that extent weakens the obligation.”
I have written many times that to possess a right to a promised deferred compensation, such as a pension, is to assert a legitimate claim with all Illinois legislators to protect that right. There are no rights without obligations. They are mutually dependent. Fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents.
The keeping of contractual promises is the Illinois General Assembly’s legal duty. It is something the State and U.S. Constitutions require them to do whether they want to or not. All citizens of the State of Illinois have legal justification for their rights, especially for compensation they have earned. For rights and obligations are logically correlative, and a citizen’s rights imply or complement the legislators’ obligation to guarantee them.
There is nothing ambiguous or vague about these decrees:
“No State shall…pass any…ex post facto law or Law impairing the Obligation of Contracts…” (The Constitution of the United States, Article 1—Limitations on Powers of States, Section 10).
“No ex post facto law, or law impairing the obligation of contracts…shall be passed” (The Constitution of the State of Illinois, Article I—Bill of Rights, Section 16).
“Each prospective holder of a State office or other State position created by this Constitution, before taking office, shall take and subscribe to the following oath or affirmation: ‘I do solemnly swear (affirm) that I will support the Constitution of the United States, and the Constitution of the State of Illinois, and that I will faithfully discharge the duties of the office of…to the best of my ability’” (The Constitution of the State of Illinois, Article XIII—Oath or Affirmation of Office, Section 3).
“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 Constitution of the State of Illinois, Article XIII—Pension and Retirement Rights, Section 5).
We cannot mistake the meaning of words such as “shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired” because we understand and speak the English language. If words in our State Constitution are to refer or mean anything, they must be commonly understood and accepted as they have been for decades. Moreover, if words are to refer to anything, they must also be understood through their use, role, employment and past agreements.
We have before us “the validity of decades of judicial precedents” that provide “the binding nature of legislation establishing pension commitments to government employees” (Challenging Public Employees’ Earned Constitutionally-Guaranteed Benefits:17 Antedated Illinois Court Cases).
If there is anything else we might examine regarding the Pension Clause and its relationship to a reality that reveals repeated attempts by the wealthy elite, their politicians and the media to steal constitutionally-guaranteed pension benefit rights, perhaps we should also dispute the relentless attacks on the very intelligibility of the English language by liars and thieves.
As stated, the foundation of public employees’ and retirees’ rights is the State and U.S. Constitutions that directly support any claims against them. State contracts are also protected by the federal government. Understandably, the 5th and 14th amendments of the United States Constitution protect due process of law. In Illinois, the legal bases for protection of past-and-future public pension rights are established in both constitutions (Illinois Pension Reform Is without Legal and Moral Justification).
Currently, Illinois Public employees and retirees are confronting a violation to the Pension and Contract Clauses, the taking of property without due process of law, and a violation of the Fourteenth Amendment and the equal protection of the laws. Senate Bill 1 is a foul attack on public employees’ and retirees’ rights to constitutionally-guaranteed benefits. An unconscionable challenge of those rights and benefits is a serious threat, not only to current public employees and retirees and their families but, to every Illinois citizen. A pension is a contract. Breaking a contract can never be legally or morally justified.
What all citizens of Illinois can accurately predict about future contracts with state legislators who believe they have the “power to interfere with the obligations of contracts [that are] specifically denied to the states [in Article 1, Section 10 of the U.S. Constitution]” is that if Illinois legislators “can declare an emergency to exist and abrogate one provision of [both State and U.S. Constitutions]…, ‘this decision serves notice upon [every citizen of Illinois], who heretofore had trusted in the constitutions for protection and believed in the sanctity of a contract, that the constitutions are no longer a guarantee nor security against the abrogation of a proper and legal contract’” (John A. Fliter and Derek S. Hoff, Fighting Foreclosure: The Blaisdell Case, the Contract Clause, and the Great Depression).
It is a matter of moral and legal concern for every citizen of Illinois to pay attention to any violations of rights and benefits of the state’s 693,000 public employees. It should be of vital concern for all citizens that the government of Illinois would want to prove its contracts are worthless, especially when the “most basic purposes of the impairment [of the contract] clause [Article XIII, Section 5] as well as notions of fairness that transcend the clause itself, point to a simple constitutional principle: government must keep its word” (Laurence H. Tribe, American Constitutional Law).
Illinois legislators are not dealing with a threat to the “public’s safety, health, and morals as well as peace, well-being and order of the state”; nor are they dealing with an economic emergency of such magnitude that they are compelled to invoke powers to protect the state's citizens and, thus, serve a “reasonable public purpose or need.” This is a dishonest assault on the public servants and retirees who have devoted their lives for the service of others.
“[T]he notion that the Pension Clause is subject to a police powers exception has already been rejected by Illinois courts on two occasions… [T]he State’s police power is not superior to the Pension Clause; rather it yields to the Clause, just as it yields to other specific constitutional prohibitions and positive mandates. Also, the Pension Clause cannot be equated with the Bill of Rights to the U.S. Constitution as inherently containing or being subject to exceptions based on notions of necessity… The Pension Clause, in contrast, does not have such a history or intent to accommodate exceptions based on claims of necessity…
“[T]he likelihood of a police power defense succeeding to vindicate Public Act 98-0599 should be at best an extremely remote outcome, especially because of the Clause’s plain language, drafting history, and purpose, and because of Illinois’ long-standing and conscious failure to fund the pension systems…
“[Let us remain confident that when the Illinois Supreme Court reviews] the plain language of the Illinois Constitution’s Pension Protection Clause [Article XIII, Section 5] as courts in this State have confirmed, this language [will also be deemed] crystal clear. Public employees become members of a pension system at the time of hire or shortly thereafter and, once they become members, their pension rights are set and cannot be ‘diminished or impaired…” (Eric M. Madiar, former Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate).
Let us remain confident the Supreme Court judges will uphold the Illinois and U.S. Constitutions as they have in the past; that these judges are not capable of illegal, immoral thievery like the political opportunists who had voted for Senate Bill 1 (Illinois Senate Bill 1, the So-called “Pension Reform” Bill (or Attempt to Break a Constitutional Contract with Public Employees and Retirees)).
Take Note Illinois Unions: This Is How One Union Fights Back Against Attacks on Teachers (by Dan Clawson)
“Under its newly elected leadership, the Massachusetts Teachers Association has become a democratic, rank and file-led organization —one that is starting to rack up victories”
“To the casual observer, Massachusetts may seem like an unlikely place to open up a new front in the assault on teachers. The state has the highest test scores in the nation, and just this year the National Education Association named its chief executive ‘America’s Greatest Education Governor.’
“But on October 20, the Massachusetts Department of Elementary and Secondary Education (DESE) unveiled a draconian proposal that would tie teacher performance, narrowly defined, to teacher licensing. Thousands of educators knew an unmitigated attack when they saw one, and responded accordingly.
“Late last week, after a massive backlash organized by the Massachusetts Teachers Association — under the leadership of Barbara Madeloni, the recently elected president of the 113,000 member union — the proposal was withdrawn. The victory should serve as a reminder that a mobilized rank-and-file and implacable leadership can defeat attacks on public school educators. Backroom deals don’t get the goods. And because the proposal will likely appear in other states, teachers around the country should take note.
“Under the October 20 proposal, teachers rated by their supervisors as ‘needs improvement’ wouldn’t just lose their jobs — they’d lose their license, preventing them from teaching anywhere in the state ever again.
“On October 30, in response to letters of protest, Massachusetts Commissioner of Education Mitchell Chester emphasized that ‘at this point in time,’ he had not yet recommended any specific changes. He was just floating a set of (bad) options. Three were being considered, and all tied license renewal to ‘performance.’
“Under Plan A, a teacher wishing to retain her license would have to be rated at least ‘proficient’ and have at least ‘moderate’ student impact ratings every year; a teacher who cleared that bar could get her license renewed for the next five years. On the other hand, if her supervisor judged that she ‘needs improvement,’ or her students’ test scores didn’t go up at least a ‘moderate’ amount, she would be unable to re-up her license.
“Under Plan B, if an educator didn’t ‘demonstrate to the state’ enough ‘progress toward growth’ on his or her educator plan, the educator would get a conditional one-year extension. This would presumably require the state to add hundreds of staff members to read through eighty thousand teachers’ educator plans. (This in a state where the DESE often takes a year to respond to a complaint that a teacher violated the rules for administering a high-stakes test — one of the agency’s highest priorities.)
“Plan C offered a menu of bad choices, and applicants had to meet two or more of them. Options included being recommended by one’s school district (dependent on one’s supervisor), ‘satisfactory student growth as measured by’ high-stakes standardized tests, and (unspecified) ‘successful and effective parent engagement.
“These inane plans – not raising pay, or according respect, or giving teachers more autonomy in the classroom – were supposed to create a world-class teaching force in Massachusetts.
“If adopted, the consequences of this ‘performance-based’ licensure system would have indeed been dire. First, teacher tenure would be effectively abolished. Forget due process. An educator could have a solid union contract and be doing a pretty good job; if his supervisor decided he wasn’t good enough, he’d lose his license and his job — even if he had Professional Teacher Status, the state’s equivalent of tenure.
“Second, teachers’ jobs would be dependent on their supervisors’ goodwill. If they got a ‘needs improvement’ rating, then in order to avoid another such evaluation, for the next four years (until the next license renewal), they would be under great pressure to support every initiative their supervisor proposed, no matter how ill-conceived.
“In other professions, people can lose their licenses for a variety of kinds of bad behavior, but nowhere else is one prohibited from working again on the basis of a bad supervisor report. Anyone who has ever had a bad boss knows how dangerous such a provision would be.
“Third, teachers would flee low-income school districts. In Massachusetts, there is an almost perfect correlation between a town’s median household income and the percent of students who receive a passing score on the state’s high-stakes standardized test. If the students have low scores, and if we have a ‘no excuses’ policy that implicitly or explicitly says teachers are entirely responsible for student test scores, then clearly the teachers ‘need improvement.’
“Therefore, most of the teachers in low-income schools would either leave teaching altogether, or they would transfer to more affluent communities (where, miraculously, their students’ test scores would go up and the teacher would suddenly be a good teacher). Not surprisingly, there are huge variations across the state in how principals and superintendents rate teachers. In Fall River, a low-income community, 31.3 percent of teachers were rated “needs improvement”; in Newton, an affluent community, only 1.3 percent of teachers were similarly judged.
“These policies would therefore have busted unions, put teachers under their supervisors’ thumbs, and driven people out of teaching, especially in low-income communities. At that point charters would emerge as the obvious option. These wouldn’t be the unfortunate by-product of the new licensure proposal; they would’ve been the inevitable result.
“But the proposal was quashed before we had to see that outcome. How was it stopped? An enlivened union membership was crucial to nixing the proposal, but so too was a newly installed, fighting leadership.
“In 2012, when the Massachusetts Teachers Association was under different leadership, the education reform group Stand for Children threatened a ballot referendum to take away teachers’ seniority rights. The union did not inform the membership, much less mobilize it. It never tried attempted to build the rank-and-file’s collective capacity to resist.
“Instead the president and vice-president engaged in secret backroom negotiations with Stand for Children. When the board of directors first learned about this — thanks to persistent questioning by a handful of board members — the president insisted that the entire discussion take place in executive session; board members were forbidden to tell the rank-and-file what was going on.
“Eventually a deal was negotiated, removing some of the worst features of the ballot measure, but with the union agreeing to dramatically weaken the impact of seniority in layoffs and transfers, which were now to be governed by ‘the best interests of the child’ – a phrase that could mean practically anything. The union’s mantra, heard often under the old leadership, was ‘it could have been worse.’
“The custom in the Massachusetts Teachers Association is for the sitting vice-president to ascend to the presidency. But something strange happened in May: Madeloni, a rank-and-file progressive activist, was elected president in the most stunning election upset in the union’s history.
“When the teacher re-licensure proposal was unveiled last month, Madeloni did not initiate backroom negotiations and seek an orderly retreat; she immediately and decisively opposed the new licensure proposal, and gave an eager membership ways to act.
“More than five thousand members sent emails, and two rallies were scheduled, with buses rented and members signed up to attend the last two of DESE’s ‘Town Hall’ meetings for their proposal. Instead of choosing which bad option to support, the campaign was titled ‘None of the Above.’
“Three weeks after the MTA campaign began, the DESE completely caved. A letter from Chester announced, ‘In short, we are rescinding the draft options that link licensure to educator evaluation.’ An impressive victory for teachers and the union, although we worry that, vampire-like, some form of this will be brought forward again as soon as DESE and corporate reformers think we are napping.
“And while the proposal has been defeated in Massachusetts, similar proposals may be coming to other states. In 2012, the Council of Chief State School Officers released a report on teacher licensure that implicitly promised another focused on re-licensure.
“The report stated it was being issued ‘to all chief state school officers to sound a clarion that current policies and practices for entry into the education profession are not sufficient,’ adding that ‘While the focus of this report is on new teachers and principals, future reports will address the need for additional preparation of veteran teachers and principals.’ Clearly the states coordinate, and announced their intention to address teacher re-licensure; the Massachusetts’ proposal appears to be an opening shot in this effort.
“So what can others learn from the victory in Massachusetts? Why was the union’s victory so complete and so swift?
“First and most importantly, the union leadership made it clear that it was prepared to fight, and that it was not looking for a minor backroom concession. Second, the union jumped on the issue immediately. The proposal was released on a Monday, and by Friday the union had developed background information, had material on its website, and had sent an email to all members with steps to take to oppose the new licensure proposal. Third, the membership was weary of backroom deals and was ready for a fight. The rank-and-file responded by the thousands, and local unions were gearing up to get every member to weigh in on the issue.
“Fourth, this was an issue that unified the membership. Every teacher knew that her license, her teaching career, was in jeopardy. Fifth, the powers-that-be had never confronted a teachers union leadership and membership prepared to fight (in fact, spoiling for a fight). For the past many years, whenever teachers were threatened the union entered negotiations to plan an orderly retreat. The DESE probably expected the same ‘let’s make a deal’ response this time, and were caught by surprise by the strength of the response.
“Finally, Madeloni made it clear that the union was not going to compromise; we were going to fight until we won, and the campaign that started strong was building momentum throughout the three weeks it took to win.
“In fighting similar corporate reform measures around the country, teachers can’t assume a mobilized base and progressive leadership will always secure a comparable victory. There are structural constraints that sheer militancy can’t overcome. But it’s certainly a precondition for success.”
This article was written by Dan Clawson, a professor of sociology at the University of Massachusetts-Amherst. He is a member of the board of directors of the Massachusetts Teachers Association and co-chair of the MTA’s education policy committee. His views and opinions do not necessarily reflect those of the MTA.
From In These Times
First published at Jacobin.