Saturday, February 9, 2013

Regarding Joe Sosnowski's proposal to abolish Article XIII, Section 5 (The Pension Clause) of the Illinois Constitution

HJRCA0011—Sosnowski. Proposes to amend the General Provisions Article of the Illinois Constitution. Repeals a provision that specifies that 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. Effective upon being declared adopted.

Mr. Sosnowski:

By legal definition, a contract is “an agreement creating obligations enforceable by law… The law provides remedies if a promise is breached or recognizes the performance of a promise as a duty. Contracts arise when a duty does or may come into existence because of a promise made by one of the parties. To be legally binding as a contract, a promise must be exchanged for adequate consideration. Adequate consideration is a benefit or detriment that a party receives which reasonably and fairly induces them to make the promise/contract” (Legal Information Institute at Cornell University Law School). Accordingly, the State of Illinois has a long list of antedated court rulings upholding the rights and benefits (contracts) of its public employees.

“The Pension Clause [Article XIII, Section 5 of the Illinois Constitution] not only makes a public employee’s participation in a pension system an enforceable contractual relationship, but also constitutionally protects the pension benefit rights contained in the Illinois Pension Code when an employee joins a pension system, including employee contribution rates. The Clause also safeguards pension benefit enhancements that are later added during employment. Further, the Clause ensures that pensions will be paid even if a pension system defaults or is on the verge of default... While the Clause bars the General Assembly from adversely changing the benefit rights of current employees via unilateral action, these rights are “contractual” in nature and may be modified through contractual principles... Welching on public pension promises is not an option for Illinois as some legal and civic commentators have suggested, legitimate contract principles provide a solution to mitigate this crisis” (Eric M. Madiar is the Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate).

As stated by Alicia H. Munnell, Director of the Center for Retirement Research at Boston College, Illinois is one of seven states where accruals are protected, and the legal basis for protection of public pension rights is under state law (State and Local Pensions). 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. 


According to philosopher David Hume, the idea of keeping a promise depends upon creating rules of justice; that rules of contracts, for instance, have to be considered morally desirable as well. In other words, a "contract" or promise between the State of Illinois and its public employees must be viewed as a moral commitment and requirement of justice. Justice demands we keep our "covenants" with one another. In regard to public pensions, keeping an agreement means a concern to promote the well-being of public employees and the need to secure their rights.

All citizens have rights that must be protected. When legislators swear an oath to uphold the state and federal constitutions, then citizens of Illinois and the United States have also acquired the right to expect that they will uphold that pledge. This is also a matter of important moral concern for all citizens of a state, for all legal claims will be validated by a moral framework since the concept of justice is grounded in ethics. If citizens’ legal rights are abused, then their dignity and humanity will also be violated.

Like all other citizens, public employees’ legal rights are derived from past political constitutions, legislative enactments, and case law. All citizens of Illinois have a fundamental right to oppose a General Assembly that imposes a violation of their constitutional rights and earned benefits… “Any statute which [is] imposed upon [public employees]… in order to redistribute resources and thus benefit some persons at the expense of others [extends] beyond the implicit boundaries of legislative authority. Such laws… violate natural rights of property and contract, rights lying at the very core of the private domain” (Laurence H. Tribe, American Constitutional Law). Mr. Sosnowski, your resolution is without legal and moral justification.

The significant issue of your resolution and pension reform is its attack on public employees’ rights to constitutionally-guaranteed, earned compensation and the legislators’ obligation to safeguard those promises. An unconscionable constitutional challenge of those rights and earned benefits generates a serious threat to their secure sense of worth as citizens and creates the unfair possibility for an economic disadvantage for a particular group of people and their families. This can never be legally or morally justified, especially when legislators have stolen money that was supposed to be paid into the public pension plans for decades.

Public employees are promised certain retirement compensation. It is earned; it is not a gratuity. They expect and plan their lives based upon these promises. “The very idea that [the state can] hold [public employees’ lives], or the means of [their] living, or any material right essential to the enjoyment of life, at the mere will of another ‘has been thought’ intolerable in any country where freedom prevails” (John Locke, Two Treatises of Government).

State “governments must respect ‘vested rights’ in property and contract…” (Tribe). We should be able to assume most legislators in Illinois understand this concept of justice and that lawfulness demands that people keep their "covenants" with one another. Regarding your resolution, no justice is accomplished when subordinating or diminishing public employees’ rights and earned benefits because of past legislators’ negligence, irresponsibility, and corruption.

All citizens of the State of Illinois have legal justification for their rights. As stated, the foundation of their rights is the State and U.S. Constitutions that directly support any claims against them. State contracts are protected by the federal government. Understandably, the 5th and 14th amendments of the United States Constitution protect due process of law. The legal bases for protection of past-and-future public pension rights are established in both constitutions.

It is shameful and reckless that a representative who has sworn an oath to uphold the State and U.S. Constitutions would propose a resolution that ignores and challenges a legal contract. Breaking a contract threatens the integrity of all laws that govern and protect the citizenry, for the values of the United States Constitution (Article I, Section 10) and the Illinois State Constitution (Article I, Section 16 and Article XIII, Section 5) are dependent upon the understanding and integration of all of the articles and amendments in totality; “the strength of the constitution[s] would not be proven by considering each article or amendment in isolation from the others” (Tom Beauchamp, Philosophical Ethics).

As citizens, we are advocates of a unification of the Bill of Rights in the United States Constitution, which protects all of us from any violations of human rights and contracts, as much as we would wish others to be motivated by a way of life that is also governed by a complete moral system of thinking. There are no good reasons for legislators’ attack on public employees’ rights and earned compensation and their attempt to equate their lives to an exchange rate in dollar amounts. 

The General Assembly cannot justify pension reform in accordance with fundamental, constitutional principles of reason and morality and neither can you, Mr. Sosnowski, justify your resolution.

What we call rights of individuals is bound up with the theory and precepts of social and political justice we adopt (John Stuart Mill, On Liberty). All citizens of the State of Illinois have legal justification for their rights and earned compensation, for rights and obligations are logically correlative, and a citizen’s rights imply or complement the legislators’ obligation to guarantee them.

The keeping of promises is the General Assembly’s legal duty. It is something the United States Constitution requires them to do whether they want to or not. Unfortunately, many legislators are willing to act without moral or ethical principles, even though “claims of rights [are] prima facie or presumptively valid-standing claims” (Beauchamp).

What is at stake is not a potential adjudication of conflicting claims that public employees will have against policymakers like you who want changes to public employees’ earned compensation and rights, but to respect the public employees’ contractual and constitutional promises because they are legitimate rights and moral concerns not only for public employees, but for every citizen in Illinois: for any unwarranted acts of cheating a person’s guaranteed rights and earned compensation will violate interests in morality and ethics and the basic principles of both the State and United States Constitutions that protect every one of us. For that reason, it is imperative that policymakers and stakeholders examine their own ethical and moral principles and their conduct in view of the fact that they will have to justify their decisions to the citizens of Illinois.
It can be inferred that if policymakers (like you) do not take individual rights and contracts seriously, but prefer to challenge them in a court of law, then we can assume legislators (like you) will not take any of their other laws seriously either.

-Glen Brown

Please write or call Mr. Sosnowski regarding his House Joint Resolution Constitutional Amendment 0011: repsosnowski@gmail.com 1-815-547-3436 (Rockford District Office), 1-217-782-0548 (Springfield) 


Joe Sosnowski (and Thomas Morrison) sponsored this resolution on February 4, 2013: Click Here.


3 comments:

  1. Eloquently reasoned and stated.
    Thank you for providing a philosophical framework for my immediate reaction of "What the hell is Mr. Sosnowski thinking?"

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  2. Denise's reaction was my first question too. My second question is "How likely is this to happen?"
    I'll be emailing Mr. Sosnowski my comments shortly.

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  3. What a disappoinment Mr. Sosnowski has become. This article is correct in stating. "It is shameful and reckless that a representative who has sworn an oath to uphold the State and U.S. Constitutions would propose a resolution that ignores and challenges a legal contract".

    If the best that he can do in solving the pension problem is to introduce a bill to ammend the state constitutional so the state is no longer required to pay the pensions than he should do the right thing and resign his office.

    Hopefully many of the 243,371 people that have already viewed this article reside in his district and will make that known during the next election.

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