Thursday, March 21, 2013

Illinois Senators Who Voted “Yes” on Both SB 0001 and SB 0035...

These are senators who apparently have no regard for a teacher’s earned constitutionally-guaranteed benefits and will most likely vote “yes” for an unconstitutional bill from the House of Representatives.

1. John Cullerton (217-782-2728, Chicago: 773-883-0770)

2. Daniel Biss (217-782-2119, Skokie: 847-568-1250)

3. Don Harmon (217-782-8176, Oak Park: 708-848-2002)

4. Patricia Van Pelt (217-782-6252, Chicago: 312-888-9191)

5. Steven Landek (217-782-0054, Burbank: 708-430-25100

6. Napoleon Harris III (217-782-8066, 708-232-8780)

7. Bill Cunningham (217-782-5145, Chicago: 773-445-8123)

8. Michael Hastings (217-782-9595, Matteson: 708-283-4125)

9. Michael Noland (217-782-7746, Elgin: 847-214-8864)

10. Mike Jacobs (217-782-5957, Moline: 309-797-0001)

11. Heather Steans (Yes vote on SB 35, “Present” on SB 1) (217-782-8492, Chicago: 773-769-1717)

Other Illinois Senators Who Voted “Yes” on the blatantly unconstitutional SB 0035 and will most likely vote “yes” for an unconstitutional bill from the House of Representatives.

12. Michael Connelly (217-782-8192, Wheaton: 630-682-8101)

13. Kirk Dillard (217-782-8148, Westmont: 630-969-0990)

14. Jim Oberweis (217-782-0471, North Aurora: 630-800-1992)

15. Dan Duffy (217-782-8010, Barrington: 847-277-7100)

16. Matt Murphy (217-782-4471, Palatine: 847-776-1490)

17. Pamela Althoff (217-782-8000, McHenry: 815-455-6330)

18. Karen McConnaughay (217-782-1977, South Elgin: 847-214-8245)

19. Darin Lahood (217-782-1942, Peoria: 309-693-4921)

20. Sue Rezin (217-782-3840, Peru: 815-220-8720)

21. Christine Radogno (217-782-9407, Lemont: 630-243-0800)

22. William Brady (217-782-6216, Bloomington: 309-664-4440)

23. Dave Syverson (217-782-5413, Rockford: 815-987-7555)

These senators voted “present” on SB 0035

24. Mattie Hunter (217-782-5966, Chicago: 312-949-1908)

25. Jacqueline Collins (217-782-1607, Chicago: 773-224-2830)

26. Thomas Cullerton (217-782-9463, Villa Park: 630-903-6662)

These senators “did not vote” on SB 0035

27. Kimberly Lightford (217-782-8505, Westchester: 708-343-7444)

28. Tim Bivins (217-782-0180, Dixon: 815-284-0045)

29. Gary Forby (217-782-5509, Benton: 618-439-2504)

Commentary on SB 1 (SB 35 is blatantly unconstitutional)
Senate President John Cullerton’s SB 0001 is an attempt to circumvent the “Pension Clause” by giving retirees and public employees a “choice” (or new consideration) to impair their own contract for a precarious state guarantee. John Stevens, Legal Consultant for the “We Are One” Labor Coalition, stated “To take away the Cost-of-Living Adjustment [COLA] for [current and future] retirees is not a free and fair choice.”

Though perhaps most contracts have an element of duress, where one side has something the other has no legal right to, Illinois legislators will be breaching a contract by forcing public employees to make a choice to diminish their originally-vested and paid-for guarantee. Legislators will be attempting to break an enforceable contractual promise, one that is bilateral and emphasizes an agreement between the State of Illinois and its retired and current public employees as to their future rights and benefits.

The courts will likely find this “illusory promise [of health care]… grossly inadequate and accompanied by unfairness because the employer [the state] is using its superior bargaining position to take undue advantage of the employee and [to] substantially impair the employee’s exercise of free will” (250 Ill. App. 3d 423, 620 N.E.2d 1328, 1st Dist. 1993: footnote to Is Welching on Public Pension Promises an Option for Illinois? An Analysis of Article XIII, Section 5 of the Illinois Constitution by Eric M. Madiar, pg. 62).

It is a diminution of the public employees’ contract to receive less than what the original vested right and benefit guaranteed. A choice between the COLA and uncertain state-sponsored health care offers public employees and retirees no ethical and lawful alternatives except to consent to the General Assembly’s demands to make an illicit choice.

Consider that “A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty (Professor of Law, Emeritus, Claude D. Rohwer and Professor of Law, Emeritus, Anthony M. Skrocki, Contracts in a Nutshell). Based upon both past and current legislators’ dereliction of duty to pay for the public employees’ constitutionally-guaranteed pensions, a court of law could find that the Illinois General Assembly has been and will be currently in “violation of any standard of good faith and fair dealing.”

Any modification of the “Pension Clause” should be seen as “the result of a violation of fair dealing,” as
an accommodation for “only” the General Assembly who have stolen money from the public pension systems for decades and are, thus, “avoiding a pre-existing duty rule” (Rohwer & Skrocki).

“The significance of any modification of the “Pension Clause” is “the extent to which [public employees] will be deprived of the benefit [they] reasonably expected; the extent to which [public employees] can be adequately compensated for the part of that benefit [COLA, for instance] of which [they] will be deprived; […and] the extent to which the behavior of the party [Illinois General Assembly] failing to perform or to offer to perform [or] comports with standards of good faith and fair dealing” (Rohwer & Skrocki).

The promise to honor commitments and pay for the public employees’ pension is of “sufficient importance” to all citizens of Illinois. To pass pension reform is “an unequivocal manifestation of intention not to perform… legal duties…under a contract… When there is a duty of immediate performance of a promise, failure to perform in full is a breach” (Rohwer & Skrocki).

Though many legislators would rather dispute one of the Bill of Rights contained in both the Illinois and U.S. Constitutions instead of addressing the “real causes” of the state's budget deficits (the pension ramp, the pension debt, and the state’s insufficient revenue), legislators should reexamine the concept of justice and what lawfulness demands: that people must keep their covenants with one another. In particular, no justice is accomplished when diminishing public employees' earned benefits and rights because of decades of legislators' irresponsibility, corruption and incompetence. (A petition to that effect).

Let us not forget how the State of Illinois has arrived in this financial predicament. The state’s unfunded liability has increased to $96 billion (and it is increasing). Forty-six percent of that amount ($44.2 billion) is the result of legislators’ “diversion” of money (a polite euphemism for stealing) from the public pension systems to pay for other services without increasing taxes.

All citizens of the State of Illinois are vulnerable because of the fiscal morass caused primarily by past incompetent, unethical and negligent General Assemblies, but also because of today’s scheming Illinois legislators who are attempting to seize political opportunity via “pension reforms” that violate a contract.

There should not be any contract modification of the retirees’ and current public employees’ guaranteed, earned benefits. To respect a contractual promise as a legitimate right and moral concern is at stake for all retirees and public employees, as well as for every other citizen in Illinois. 

--Glen Brown

For more constitutional analyses, please also read:

“Defending and Protecting Public Employees’ Pensions against the Legislative Siege…” (excerpts from Eric M. Madiar) and “How Much Can States Change Existing Retirement Policy? In Defense of State Judicial Decisions Protecting Public Employees’ Pensions” by Douglas L. Greenfield and Susan G Lahne) (posted December 10, 2012)

Illinois Pension Clause’s Convention Debates, Text and Historical Background (excerpts from Eric M. Madiar) (posted February 4, 2013)

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