Wednesday, March 6, 2013

Illinois Senate Bill 0001: “Contains a Part B… to… take effect only if… Part A is… unconstitutional…”

SB 0001
“Amends the General Provisions, General Assembly, Illinois Municipal Retirement Fund (IMRF), State Employee, State Universities, Downstate Teacher, and Judges Articles of the Illinois Pension Code. Contains a Part A, which is intended by the General Assembly as a stand-alone reform of the General Assembly, State Employee, State Universities, and Downstate Teacher Articles of the Illinois Pension Code and takes effect upon becoming law. Contains a Part B, which is intended to provide alternative provisions that take effect only if and when a corresponding portion of Part A is determined to be unconstitutional or otherwise invalid or unenforceable. In Part A, caps pensionable salary, temporarily suspends and reduces the amount of automatic annual increases, requires the systems to be 100% funded by 2043, and increases required employee contributions. In Part B, requires persons to make an election either to accept reductions in the amount of, as well as delays in eligibility for, automatic annual increases or to forgo certain healthcare benefits and future increases in pensionable income. Effective upon becoming law, except that specified portions of Part B take effect upon the date following the date upon which certain contingencies occur” (SB 0001).

Some of us have asked whether a two-part bill, such as SB 0001, is legal. There is an interesting antedated court case that allowed a legislature to create a statute contingent upon future events and combine two statutes together using consideration:

“…In State v. Duren, supra… Mr. Duren was charged with capital murder under §§559.005 and 559.009, RSMo. (Supp. 1975) (repealed). 547 S.W.2d at 477. Relying on Woodson v. North Carolina, 428 U.S. 280 (1976), (finding unconstitutional a North Carolina post-Furman statute that provided for a mandatory death penalty), the trial court found §§559.005 and 559.009 ‘authorized imposition of the death penalty in a manner violative of the Eighth and Fourteenth Amendments to the United States Constitution,’ held the statutes unconstitutional, and granted Mr. Duren’s motion to dismiss his indictment. Id.

“On appeal, this Court held that §559.011 – titled ‘Alternative punishment if death penalty declared unconstitutional’ – applied to ‘save’ the indictment and authorized Mr. Duren to be sentenced, if found guilty, to life imprisonment. Id. at 480-81. Section 559.011 provided, ‘If the category of capital murder or the penalty prescribed herein is declared to be unconstitutional by the Missouri Supreme Court or the United States Supreme Court, all killings which would be capital murder under any of the circumstances specified in section 559.005 shall be deemed to be murder in the first degree and the offender shall be punished accordingly...’ (See A9).

“Of particular interest to the present case is the Court’s response to Duren’s claim §559.011 did not apply since the United States Supreme Court did not find the death penalty ‘per se’ unconstitutional: We think the argument lacks merit. In the first place, the legislative intent obviously was to provide for the possibility the ‘penalty’ could not be imposed for any reason; and secondly, this court, having now ruled that the ‘penalty’ is unconstitutional under the existing statues, has made the second contingency effective. Id. at 480-81.

“Duren answers Judge Wiggins’ contention that §565.040.1 only applies when ‘the death penalty’ itself is declared unconstitutional under the Eighth Amendment. Duren found language and intent of §559.011 broad enough to cover any circumstance in which ‘the ‘penalty’ of death ‘could not be imposed for any reason.’ Id. The language of §565.040.1, the successor to §§ 559.011 and 559.016 (see A8-9) – ‘the death penalty provided in this chapter’ makes an even stronger case for the legislative intent being to provide an alternate sentence when under the terms of Chapter 565, the death penalty may not be imposed as opposed to providing for an alternate sentence only when the death penalty is found to be unconstitutional under the Eighth Amendment…” (On Preliminary Writ of Prohibition from the Supreme Court of Missouri, En Banc to the Hon. John D. Wiggins, Circuit Judge of Pulaski County: Brief of Relator, 21-23)

Of Note: According to Tabet, DiVito & Rothstein LLC, if a current retiree has a negotiated agreement for health care benefits until Medicare, via collective bargaining, that health care benefit cannot be changed (Read Constitutional Issues Concerning SB 1, Pt. B).

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