Wednesday, May 8, 2013

Illinois Senate Bill 1 and Senate Bill 2404: A Speculation

“The best deceptions are the ones that seem to give the other person a choice: your victims feel they are in control but are actually your puppets. Give people options that come out in your favor whichever one they choose. Force them to make choices between the lesser of two evils, both of which serve your purpose. Put them on the horns of a dilemma… Such is the power of giving people a choice, or rather the illusion of one, for they are playing with cards you have dealt them… For people who are choosing between alternatives find it hard to believe they are being manipulated or deceived; they cannot see that you are allowing them a small amount of free will in exchange for a much more powerful imposition of your own will” (Robert Greene, The 48 Laws of Power).

Let’s imagine that the final Illinois Senate Bill 2404 bill includes a Part A: Madigan's version and, just in case it is voted unconstitutional in the IL Supreme Court, includes a Part B: Cullerton's “Choice” version, just in case Part A is struck down. You might ask: can this be possible?

There is a legal precedent for this type of two-part bill:

“…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 (Supp. 1975) (repealed). 547 S.W.2d at 477.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 [Cruel and Unusual Punishment] and Fourteenth [Due Process and Equal Protection] 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…” (State Ex rel. Bobby Joe Mayes, Appellant vs. The Hon. John D. Wiggins, respondent, pgs. 21-22).

This antedated court case allowed a legislature to create a statute contingent upon future events and combine two statutes together using consideration.

“…[Nevertheless], as explained in Kraus v. Board of Trustees of Police Pension Fund of the Village of Niles, 72Ill. App. 3d 833, 849 (1979), legislation ‘which has an incidental effect on the pensions which employees would ultimately receive, is not prohibited’ if it is ‘directed toward another aim.’ Conversely, because Part B is directed specifically toward penalizing pension annuitants, it is an impermissible end-run around the Pension Protection Clause. Similar end-runs around the Pension Protection Clause are equally impermissible” (Gino L. DiVito, John M. Fitzgerald, and Katherine M. O’Brien of Tabet, DiVito & Rothstein LLC, Constitutional Issues Concerning Legislative Pension Reform Proposals, February 2013) (Constitutional Issues Concerning Senate Bill 1, Pt. B)

But the aforementioned speculation is unlikely, however, because “Bad Cop” Madigan’s shelling of Cullerton’s SB 1 was perhaps meant to expedite the acceptance of “Good Cop” Cullerton’s newly-sponsored bill SB 2404 by the We Are One Illinois Labor Coalition.

“A spokesman for House Speaker Michael Madigan, [however], was quick to point out the flaw in Cullerton's proposal, which is that ‘it doesn't look like it saves money.’ In fact it doesn't save nearly as much as the bill Madigan passed out of his House, about one-third as much over the next three decades. If the House Democrats' version would cut $140 billion in state spending by the mid-2040s - to cover a $97 billion and growing unfunded pension liability, largest in the nation - the current Senate incarnation would trim $46 billion” (Our View: The House deals, the Senate calls, pension poker game continues).

If Cullerton’s bill passes both Houses and then is signed into law, watch out for that next pension reform bill! It’s just a matter of time until their next assault on the Pension Clause.


  1. A Letter from Roger Sanders

    Today's update on the pension reform process is ugly, regardless of what your preferred solution is.

    First, with IRTA announcing that if SB2404 passes (which forces retirees to choose between current COLA benefits and access to state health insurance), the IRTA intends to use its legal defense fund to challenge the law as unconstitutional. Speaker Madigan is now taking the stance that why not pass the more draconian SB1 (Amendment 1) that the House approved since it will "save more money." Madigan's position is that if both bills face a constitutional challenge, why not go with his? This places greater pressure on Cullerton and any compromise between the two houses, if that was ever possible.

    My opinion: this is a perfect example why working only through the state unions and not directly including IRTA in the process has been a mistake by all parties. I cannot support SB2404 or SB1. Just a short time ago the Senate passed a bill (SB1 original) that did not include retirees. Now the Senate has brought retirees into the mix. What has changed in that short time? Plus, Cullerton only got SB1 (original) through the Senate when the retirees were pulled out. He didn't have the votes then, but apparently things have changed. In my non-legal view, both bills violate the Illinois Constitution.

    AND there is every reason to expect that politicians will be back for more soon. They are still using the "nibble-nibble" approach to attack pensions rather than look at a truly comprehensive solution. Neither SB1 nor SB2404 as they stand today are comprehensive solutions. Don't think for one N.Y. second that if either of these bills becomes a reality that politicians won't be back for more. They absolutely will.

    Madigan has announced that he is also going to pursue the cost shift to have local districts pick up the cost of pensions. We all know what that means, either higher local taxes, drastic cuts in school staffing levels, and/or significant teacher salary cuts.

    AND another possibility exists. Combine SB1 (Amended) with SB2404 into one bill and see what the Illinois Supreme Court does with it. The approach of just throwing something at the wall and see what sticks is repugnant.

    The culture of political expediency, collusion, and corruption in Illinois continues. The public employees, retirees, and all citizens of Illinois deserve better.

    --Roger Sanders

  2. The attack on the IRTA is a disturbing dimension of the pension debate by Fred Klonsky

    I’ve heard this. Let the union leadership bargain the best deal they can, and then go to court anyway. If the courts rule in defense of the constitution then all is good and the legislature will have to go back and address the revenue issue like they should have. If the courts rule that the legislature can ignore the constitution, then at least we will have the better of the two bad deals. You know your living in Illinois when you’re forced to engage in that kind of thinking.

    I believe that the We Are One legal minds say that by coming up with this bargain SB 2404 emerges constitutional. The law allows for a modification of a contract. By conceding to the diminished benefits of SB 2404 the We Are One coalition, the IEA included, undermines any legal recourse others may seek, including recourse by the 35,000 member Illinois Retired Teachers Association.

    This brings me to the role of the IRTA, which is not a union. They are charged with protecting the interests of teacher retirees in Illinois.

    Some defenders of the pension deal have turned on the IRTA because they refuse to agree that something that was unconstitutional yesterday is constitutional today. To criticize them for having administrators as members or for not being concerned with active teachers (although many IRTA members are) is like criticizing the American Medical Association because they are not lobbying for farmers. I think both organizations are important. We need a strong advocate for teacher retirees. And we need a strong retired branch of the IEA working inside the union to make sure that it fights in the interests of both active and retired teachers.

  3. I am sick to death of reading about "pension reform." For three and a half years we have been having the wrong conversation. I think both bills would be found unconstitutional and the legislators will have to seek a new remedy. A remedy that includes all - corporations, 1%ers, middle class, everyone! We need Revenue Reform! Let's stop penalizing and vilifying the public employees just because they will receive a pension. It was the rule of the game when we started playing and no one would put up with changing the rules in the middle of the game. For others who look at public employees with a pension and say, "why should you get one?", I don't! WELL YOU SHOULD!!!! Only in the United States do we practice this type of sick mentality - where corruption and greed is masked as "reform!"

  4. IEA is actively killing the possibility of a court challenge. How? It has put into writing for all its members and pension attackers to read, "Senate Bill 2404, is a constitutional alternative to House Speaker Michael Madigan’s Senate Bill 1."
    As a matter of fact, this statement alone shows that no one "at the table" is covering our backs in this attack against us and our pensions.
    Madigan, Cross and Quinn are well paid minions of the Civic Committee. (Yes, the list is longer.) Soglin, Ingram and Klickna are incompetent or corrupt - or both. We may never know the details to the behind-closed-doors deals cut by these combined cut-throats.