Tuesday, September 17, 2013

Today Is Constitution Day, and Illinois Pension Reform Has Always Been Unconstitutional

“Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties” –Abraham Lincoln

“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 the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution” –Abraham Lincoln

…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...  (link: Illinois Pension Reform Is Without Legal and Moral Justification).

“One great object of the Constitution was to restrain majorities from oppressing minorities or encroaching upon their just rights” –James Polk

“…Voters ratified the [Pension] Clause based on the premise that the provision protected public pension benefit rights from reductions and that public employees were granted a constitutional right to their ‘full pension benefits…’” (Madiar (2011), Is Welching on Public Pension Promises an Option for Illinois? An Analysis of Article XIII, Section 5 of the Illinois Constitution) (link: Illinois Pension Clause’s Convention Debates, Text and Historical Background). 

“…The Pension Code sufficiently manifests intent to make pension payments the obligations of the State when due… [T]he Illinois Pension Code Article of each of the five state-funded pension systems contains a provision with sufficient language binding the State to pay pensions even if a system defaults. Each provision states in pertinent part that ‘[t]he payment of the required department contributions, all allowances, annuities, benefits granted under this Article, and all expenses of administration of the system are obligations of the State of Illinois to the extent specified in this Article…’” (Madiar (2011), Is Welching on Public Pension Promises an Option for Illinois? An Analysis of Article XIII, Section 5 of the Illinois Constitution) (link: What happens if the Illinois public pension funds are “on the verge of bankruptcy?).

“…The inclusion of the phrase ‘benefits of which shall not be diminished or impaired’ manifests… clear evidence of the framers’ intent to limit the General Assembly’s power to modify pension benefit rights even in the face of a fiscal crisis. This conclusion is supported by the common dictionary definitions of the terms ‘benefits,’ ‘diminish,’ and ‘impair.’ After all, the Clause’s prohibitory language contains no exceptions and is fashioned in absolute terms…” (Madiar (2011), Is Welching on Public Pension Promises an Option for Illinois? An Analysis of Article XIII, Section 5 of the Illinois Constitution) (link: A Trifecta of Political Opportunists).

“…In jurisdictions that find that a public employee’s pension contract rights arise… either when the employee first was hired or joined the pension plan, or at some point during the employee’s public service, courts have generally held that, once these rights come into effect, the employee is protected with respect to both past service and future service…” (Douglas L. Greenfield and Lahne, Susan G. (2012), How Much Can States Change Existing Retirement Policy? In Defense of State Judicial Decisions Protecting Public Employees’ Pensions) (link: Defending and Protecting Public Employees’ Pensions against the Legislative Siege).

“…An ‘agreement’ extracted from a retiree on the threat of losing his or her health coverage would hardly be the sort of voluntary undertaking that is necessary for a valid contractual modification. As the Illinois Appellate Court has explained, ‘[I]t is well settled that a contract, once made, must be performed according to its terms and that any modification of those terms must be made by mutual assent and for consideration…’” (Gino L. DiVito, John M. Fitzgerald, and Katherine M. O’Brien of Tabet, DiVito & Rothstein LLC (2013) Memorandum to Illinois Retired Teachers Association) (link: Constitutional Issues Concerning).

“The liberties of our country, the freedom of our civil constitution, are worth defending against all hazards: And it is our duty to defend them against all attacks” –Samuel Adams

…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…” (Professor of Law, Emeritus, Claude D. Rohwer and Professor of Law, Emeritus, Anthony M. Skrocki, Contracts in a Nutshell)  (link: Modification of Contract Principles (and what many petitioners want their unions to do).

“One thing we cannot do… is [to] ignore the Constitution of Illinois.... No principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem…” (link: COLA: a Guarantee for Illinois Judges).

There are several antedated court cases that uphold the Constitution of the State of Illinois (link: Challenging Public Employees’ Earned Constitutionally-Guaranteed Benefits: Antedated Illinois Court Cases).

Update May 2015:

It was always a legal and moral issue!

“[O]f fundamental importance [is] the primacy of the Illinois Constitution over considerations of political expediency” (Brief of ISEA, RSEA, Heaton and Harrison, Plaintiffs-Appellees, 2).

Today [May 8] we celebrate a legal and moral victory. We can believe in the Illinois Constitution for protection and believe in the sanctity of contracts once again. We can believe the Pension Protection Clause “confers additional, independent protection for public retirement benefits separate and distinct from the protection afforded by the Contract Clause” (Brief of ISEA, RSEA, Heaton and Harrison, Plaintiffs-Appellees, 22). We can believe the Pension Protection Clause decisively has no reference to “subject to police power.” We can believe Illinois legislators “may not rewrite the Pension Protection Clause to include restrictions and limitations that the drafters did not express and the citizens of Illinois did not approve” (32). We can believe “no reserved power allows a state legislature to sidestep the plain prohibitions set out in its own constitution...” (41) (ILLINOIS SUPREME COURT RULES AGAINST LEGISLATIVE THEFT!).


  1. from John Dillon’s post today: Bye-Bye, Bill Daley: The Enormity of the Office

    “‘…We don’t have a pension problem. We have a revenue problem. We’ve had this problem for decades, and these problems were made worse when Jim Thompson had had pension holidays in which they paid nothing into the pension fund. You had Blagojevich doing that twice, not paying into the pension fund. Furthermore, we have never collected enough taxes to cover the normal costs of government, which we would call education, public safety, infrastructure, and health. So we rob – we took – the money that was supposed to go into the pension funds –and we use that to cover any shortfalls we’ve had in the state. And now, lo and behold, we have this shortfall and you expect the pensioners to pay for it. That’s sort of like making the victim pay for the crime. Illinois needs to deal with its revenue problem. It needs a graduated tax rate system…’” (a comment made on Dick Kay’s program).


  2. I wrote in 2011 that challenges lie ahead for current public employees, retirees and their families, and for every citizen of Illinois. These facts have not changed: there are liars and thieves among us who will continue to choose which contracts to honor and which ones to violate in the future.

    We know many Illinois legislators will attempt another thievery of our benefits and rights again. It is just a matter of time. Most candidates for the current Illinois House and Senate will be ignorant of the antedated Illinois Supreme Court cases, and they will surely howl about so-called “pension reform.”

    We must continue our vigilance. Most importantly, we must be preemptive against dishonest politicians and their mendacious accomplices, such as members of the Civic Committee of the Commercial Club of Chicago, the Civic Federation, Illinois Policy Institute, and their ilk.

    We must also never become complacent in our belief that justice exists for those who simply “fight the good fight”; nor should we become indifferent to political power and what exorbitant wealth can buy: a “democracy on the auction block, subject to the highest bidder” (Bill Moyers). It is up to us to protect what we have earned for our life’s labor by opposing the next wave of attacks from the Illinois General Assembly, the Civic Committee, the Civic Federation, Illinois Policy Institute, and their purchased media.

    We must continue to defend our dignity with stubborn resolve. We are intrinsically bound to one another in this regard. We must make sure our unions’ leadership is prepared to defend our constitutionally-guaranteed pension benefits without concessions and compromise.

  3. What do you think of this. https://www.trsil.org/Pension-Code-Action-By-GA

    1. https://teacherpoetmusicianglenbrown.blogspot.com/2018/06/changes-to-illinois-pension-code.html#comment-form

  4. Let us not forget that "When our democracy is threatened from within, we must save it ourselves... Transcending forces of decay, disinformation, and disunion will not be easy. This is the great national calling of our time: the North Star that must guide decisions about ending or enduring disastrous presidencies. There is no quick fix for the challenges we face. They are surmountable only if each of us resolves anew that America and democracy are well worth fighting for" -Laurence Tribe.

    "It doesn't matter how good the Constitution is. It doesn't matter how brilliant the Framers were. It doesn't matter how good or bad our advocacy in this trial is. It doesn't matter how well written the oath of impartiality is. If right doesn't matter, we're lost. If truth doesn't matter, we're lost" -Adam Schiff.

    Because most of us live as social, rational human beings, we have implicitly consented to moral and social contracts that have been devised. It is because we understand why moral precepts are beneficial for all of us; that we have the Rule of Law, established in the U.S. Constitution; that we have a shared set of moral and legal expectations for our conduct that makes it imperative to appeal to a public sense of justice regardless of political party affiliation.

    Because Republicans in power continue to polarize politics through hyper-partisanship, unprincipled partiality, and political stagnation; because they continue their unwavering allegiance to their extensive tribalism, their powerful interests, their dark money, and Trump's base so they are guaranteed campaign funds, committee assignments, and reelection; because they continue their irreparable damage to the constitutional system, democratic institutions, and separation of powers, it is up to the rest of us to preserve our slowly-dying democracy!