“CONCERN THAT THE STATE WOULD WELCH ON ITS PENSION OBLIGATIONS BECAUSE IT UNDERFUNDED PENSION SYSTEMS - THE SAME SITUATION THAT EXISTS TODAY - IS THE REASON THAT ILLINOIS ADOPTED THE PENSION CLAUSE TO PROTECT ILLINOIS WORKERS
“Although
this litigation involves the unconstitutionality of Public Act 98-0599, its
underpinnings involve much more than a legal question. At base, this litigation
concerns an ethical and moral promise to provide a certain level of retirement
security for the women and men who chose to serve Illinois and its citizens.
“The
majority of Illinois' public employees in State retirement systems are not
eligible to receive Social Security, including all employees who are members of
TRS and SURS and many SERS members. For many individuals, their State pension
is their life savings and is all that that stands between them and poverty.
“In 1970, the State recognized this situation and took action to assure
the retirement security of these public workers. At the time of the 1970
Illinois Constitutional Convention, fifteen of the seventeen retirement systems
that the Illinois Pension Code encompassed were mandatory plans, allowing the
Illinois legislature to change or revoke those plans' terms. At the same time,
the pension systems were no better funded than they are today.
“As indicated, the Pension Clause protects pension benefits, which
include the criteria used to determine eligibility for a non-discounted pension
and the method by which the amount of a member's initial pension amount and
subsequent yearly pension annuity is calculated: ‘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’ (Ill.
Const. 1970, art. XIII, § 5.).
“Pursuant to
the Pension Clause, a member's pension benefits are guaranteed by an
enforceable contract with the State that the State cannot unilaterally diminish
or impair by legislation or otherwise, no matter the circumstance.
“A public employee's contract right to the pension benefits, including
the amount of pension, vests on the member's first day of membership in a State
retirement system. The effective date of membership in SERS, SURS and TRS is
the day on which a member begins employment in a position that is covered by
SERS, SURS or TRS. A pension system member first contributes to the system on
his or her first day of paid service. And, thereafter, where the State enhances
those benefits, the member's right to the enhanced benefits vests upon the
member's continued participation in the system following the effective date of
that enhancement.
“The pensions that Plaintiffs receive, or will receive upon retirement,
as members of SERS, SURS and TRS are defined benefits. That is, the pension
amount that a member receives over the course of his or her retirement is
specified by formula set forth in Illinois' Pension Code. As such, the State is
able to determine actuarially the approximate amount that each member will
receive in retirement and the concomitant amount that should be contributed to
each pension system each year to make sure that each member receives the
annuity amount that the State promised to him or her.
“The pensions that Illinois' public servants receive are not mere
gratuities. In addition to the work each pension system member performs while
serving Illinois and its residents, members contribute a substantial portion of
their paychecks to their pensions. Members of TRS contribute 9.4% of their
salaries to their pensions. Members of SERS contribute 8% of their salaries to
their pensions if they are not covered by Social Security and 4% of their
salaries if they are subject to Social Security. And, members of SURS
contribute 8.0% of their salaries to their pensions.
“Typically, a member is entitled to retire with a non-discounted pension
annuity where the member meets the minimum service credit and age requirements
for eligibility. Once a member employee meets those minimum service credit and
age requirements, three main factors determine the amount of the member's
initial pension: final average salary; years of
service credit; and a percentage equal to 2.2% for
each year of service credit for members who are not covered by Social Security
and 1.67% for each year of service credit where
the member receives Social Security, up to a maximum percentage (See 40 ILCS 5/16-133; 40 ILCS
5/14-108; 40 ILCS 5/15-136.).
“Other, less
common, formulas within each of SERS, SURS and TRS exist for calculating the
initial pension amount of some State employees. Analysis of those less common
formulas by which to calculate initial pension amounts is not needed to
determine and declare that Public Act 98-0599 is unconstitutional, null and
void.
“Public Act
98-0599 diminishes and impairs pension amounts of SERS, SURS and TRS members
regardless of the formula used to calculate a member's initial pension amount…
“TRS PENSION
CALCULATION PRIOR TO JUNE 1, 2014
“Prior to
June 1, 2014, the date on which the unlawful changes Public Act 98-0599 imposes
are to take effect, a member of TRS is eligible to terminate service and
receive a non-discounted annuity if she or he meets the following age and
service requirements: age 62 with 5 years of
service credit; age 60 with 10 years
of service credit; age 55 with 20 years of service credit (provided
employee pays for an early retirement option); age 55 with 35 years of service credit; or if the TRS member is
an employee of the State, when the employee's age plus service credit equals 85
(See 40 ILCS 5/16-132.).
“Teachers
and other members of TRS are not eligible for Social Security. As a result,
members of TRS earn an initial pension amount of 2.2% per year of service
credit, up to 75% of the member's final average salary. Thus, for example, a
teacher who retires prior to June I , 2014 with a final average salary of
$50,000 and 30 years of service credit would receive an initial pension annuity
of $33,000 (e.g., 30 years x 2.2% per
year = 66%; 66% x $50,000 = $33,000)…”
From http://www.weareoneillinois.org/WeAreOneIllinois_Complaint.pdf
Commentary (Redux)
Commentary (Redux)
12 pragmatic and legal reasons to reject Illinois pension reform:
1. “[Pension
reform] constitutes a unilateral attempt to modify public employees’ employment
agreements with the State, even with respect to those employees who have
already retired… A unilateral reduction of pension rights is unconstitutional,
even if coupled with an equally unilateral [precarious] benefit that the
[Illinois] General Assembly [and We Are One Coalition] imagines retired and
active public employees might theoretically find desirable…” (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…).
2. “Pension benefits are under siege for two reasons: opportunity and political motives… [Legislators] frame [the] larger discussion of whether the law provides states with a means to achieve a particular objective: the unilateral reduction of public pension benefits to avoid painful tax increases, service cuts, or both… For decades, states have treated pension systems as a credit card to pay for government services and avoid tax increases or service cuts…” (Eric M. Madiar, Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate (2012), Public Pension Benefits under Siege: Does State Law Facilitate or Block Recent Efforts to Cut the Pension Benefits of Public Servants?)
“Most states… cannot readily reduce their existing pension obligations to their employees in an effort to solve a fiscal crisis, and until recently few even tried… It is worth noting the inequity inherent in cutting pensions promised to state and local public servants based on alleged underfunding that was substantially caused, in many cases, by funding “holidays…” [Approximately $15 billion was stolen from the Teachers Retirement of Illinois. This amount does not include the possible investment income that would have been earned].
“[Any] attempt to denigrate the validity of decades of judicial precedents about the binding nature of legislation establishing pension commitments to government employees and to motivate state courts to overturn long-settled premises about these commitments would impose its own, unjustifiable costs. The states and their instrumentalities have promised pension benefits to their employees; those employees have relied on those long-standing promises; and as a result the citizens of the states have benefited from the services provided by those employees…” (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 for quotations: Defending and Protecting Public Employees’ Pensions against the Legislative Siege).
3. There are several antedated court cases that uphold the Illinois Constitution (link: Challenging Public Employees’ Earned Constitutionally-Guaranteed Benefits: Antedated Illinois Court Cases).
4. “The Pension Clause’s plain language reveals that an employee’s contractual rights exist and are legally secured at the time of membership, and those rights cannot be unilaterally reduced or voided thereafter. Nowhere does the Pension Clause limit protection… to only ‘benefits that were previously earned.’ To reach [another] conclusion, the provision would need to add the word ‘earned’ or ‘accrued’ before the word ‘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: A Trifecta of Political Opportunists).
5. “A plain language reading of the Pension Clause’s text makes clear that governmental entities may not reduce or eliminate a public employee’s pension payments and other membership entitlements once the employee becomes a pension system member. At the same time, the plain language also indicates that an employee’s pension payments and other membership entitlements are ‘contractual’ rights that may be presumably altered through mutual assent via contract principles. [Note: the Cullerton and Coalition agreement did not have approbation of thousands of retirees and non-union members]. Further, the Clause’s prohibitory language against the diminishment or impairment of pension benefits is cast in absolute terms and lacks any exceptions…” (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).
6. “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).
7. “Illinois courts have concluded that the Pension Clause affords legislature no police reserved power” to impair a constitutional guarantee (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?”).
8. “One might assume the government of Illinois would not want to prove that its promises are worthless, especially when the most basic purposes of the impairment [of the contract] clause [Article XIII, Section 5] as well as notions of fairness that transcend the clause itself, point to a simple constitutional principle: government must keep its word” (Laurence H. Tribe, American Constitutional Law) (link: A Discussion We Do Not Want to Have).
9. 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…” (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).
10. What is at stake right now is not a potential adjudication of conflicting claims that public employees will have against policymakers who want changes to retirees’ and public employees’ earned compensation and rights, but to respect the retirees’ and 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 (link: Illinois Pension Reform Is Without Legal and Moral Justification).
11. Many legislators of the Illinois General Assembly are controlling the focus and conversation regarding the state's pension debt, while ignoring the causes of the state's budget deficits. No matter what pension reform bill is passed, it will never be enough to address the serious underlying problems that exist. These legislators will attack public employees' pensions again because they were able to make retirees and public employees the scapegoats for the problems they have caused. Public employees across the country are also victims for much greater problems… (link: Why Any Illinois "Pension Reform" Is a Devious Ruse).
12. Illinois legislators ignore the fact that the state “suffers from structural deficits or from failure of revenues to grow quickly as the cost of services…, [and that] structural deficits stem largely from out-of-date tax systems, coupled with costs that rise faster than the economy… Fixing these structural problems would help [Illinois] balance [its] operating budgets without resorting to [a reckless and radical “pension reform” instigated and propagandized by the Civic Committee, Civic Federation, Chicago Tribune and the legislators they influence]” (The Center on Budget and Policy Priorities) (link: Understanding Illinois’ Budget Deficit and Solutions).
2. “Pension benefits are under siege for two reasons: opportunity and political motives… [Legislators] frame [the] larger discussion of whether the law provides states with a means to achieve a particular objective: the unilateral reduction of public pension benefits to avoid painful tax increases, service cuts, or both… For decades, states have treated pension systems as a credit card to pay for government services and avoid tax increases or service cuts…” (Eric M. Madiar, Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate (2012), Public Pension Benefits under Siege: Does State Law Facilitate or Block Recent Efforts to Cut the Pension Benefits of Public Servants?)
“Most states… cannot readily reduce their existing pension obligations to their employees in an effort to solve a fiscal crisis, and until recently few even tried… It is worth noting the inequity inherent in cutting pensions promised to state and local public servants based on alleged underfunding that was substantially caused, in many cases, by funding “holidays…” [Approximately $15 billion was stolen from the Teachers Retirement of Illinois. This amount does not include the possible investment income that would have been earned].
“[Any] attempt to denigrate the validity of decades of judicial precedents about the binding nature of legislation establishing pension commitments to government employees and to motivate state courts to overturn long-settled premises about these commitments would impose its own, unjustifiable costs. The states and their instrumentalities have promised pension benefits to their employees; those employees have relied on those long-standing promises; and as a result the citizens of the states have benefited from the services provided by those employees…” (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 for quotations: Defending and Protecting Public Employees’ Pensions against the Legislative Siege).
3. There are several antedated court cases that uphold the Illinois Constitution (link: Challenging Public Employees’ Earned Constitutionally-Guaranteed Benefits: Antedated Illinois Court Cases).
4. “The Pension Clause’s plain language reveals that an employee’s contractual rights exist and are legally secured at the time of membership, and those rights cannot be unilaterally reduced or voided thereafter. Nowhere does the Pension Clause limit protection… to only ‘benefits that were previously earned.’ To reach [another] conclusion, the provision would need to add the word ‘earned’ or ‘accrued’ before the word ‘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: A Trifecta of Political Opportunists).
5. “A plain language reading of the Pension Clause’s text makes clear that governmental entities may not reduce or eliminate a public employee’s pension payments and other membership entitlements once the employee becomes a pension system member. At the same time, the plain language also indicates that an employee’s pension payments and other membership entitlements are ‘contractual’ rights that may be presumably altered through mutual assent via contract principles. [Note: the Cullerton and Coalition agreement did not have approbation of thousands of retirees and non-union members]. Further, the Clause’s prohibitory language against the diminishment or impairment of pension benefits is cast in absolute terms and lacks any exceptions…” (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).
6. “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).
7. “Illinois courts have concluded that the Pension Clause affords legislature no police reserved power” to impair a constitutional guarantee (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?”).
8. “One might assume the government of Illinois would not want to prove that its promises are worthless, especially when the most basic purposes of the impairment [of the contract] clause [Article XIII, Section 5] as well as notions of fairness that transcend the clause itself, point to a simple constitutional principle: government must keep its word” (Laurence H. Tribe, American Constitutional Law) (link: A Discussion We Do Not Want to Have).
9. 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…” (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).
10. What is at stake right now is not a potential adjudication of conflicting claims that public employees will have against policymakers who want changes to retirees’ and public employees’ earned compensation and rights, but to respect the retirees’ and 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 (link: Illinois Pension Reform Is Without Legal and Moral Justification).
11. Many legislators of the Illinois General Assembly are controlling the focus and conversation regarding the state's pension debt, while ignoring the causes of the state's budget deficits. No matter what pension reform bill is passed, it will never be enough to address the serious underlying problems that exist. These legislators will attack public employees' pensions again because they were able to make retirees and public employees the scapegoats for the problems they have caused. Public employees across the country are also victims for much greater problems… (link: Why Any Illinois "Pension Reform" Is a Devious Ruse).
12. Illinois legislators ignore the fact that the state “suffers from structural deficits or from failure of revenues to grow quickly as the cost of services…, [and that] structural deficits stem largely from out-of-date tax systems, coupled with costs that rise faster than the economy… Fixing these structural problems would help [Illinois] balance [its] operating budgets without resorting to [a reckless and radical “pension reform” instigated and propagandized by the Civic Committee, Civic Federation, Chicago Tribune and the legislators they influence]” (The Center on Budget and Policy Priorities) (link: Understanding Illinois’ Budget Deficit and Solutions).
