Sunday, August 24, 2014

A Commentary by John Dillon on the Recent Motion Filed in Sangamon County

“On August 21st, legal counsel representing ISEA, RSEA, Heaton & Harrison filed a joint motion in Sangamon County for a judgment on the pleadings as to the affirmative defense, or in the alternative, to strike the affirmative defense. 

“An affirmative defense, in this case the summoning of ‘reserved sovereign powers’ by the Attorney General Lisa Madigan, is a defense in which ‘the defendant(s) introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant(s) committed the alleged acts’ (Legal Information Institute)... [In other words, the affirmative defense is where “a defendant offers evidence to avoid judgment against him or her”]…

“In the civil case of SB1 (now Public Act 98-599), the affirmative defense put forth by AG Madigan is necessity.  [The defense of Necessity “excuses the defendant from liability for an otherwise criminal or tortious act when he or she has unavoidably been forced to make a ‘choice of evils,’ e.g., intentionally setting fire to ‘real property of another for the purpose of preventing a raging forest fire from spreading into a densely populated community’”]. Note the hyperbolic analogy in this example...

“What would follow includes ‘discovery,’ [“a pretrial procedure by which one party gains information held by another party”], but the recent Kanerva decision has prompted... a motion by the plaintiffs. 

“‘In an apparent attempt to cloud the absolute protection that the Pension Protection Clause affords members of the State’s pension and retirement systems, the defendants insist on engaging in extensive and expensive fact and expert discovery concerning the fiscal condition of the State.  But Kanerva confirms that whatever facts and opinions the defendants might be able to muster could not, as a matter of law, amount to any justification for the Act’s unconstitutional diminishment and impairment of pension benefits’” (p.2/14 Case No. 2014-MR-1)… 

“A motion for judgment on the pleadings is [“a motion admitting to an agreed-upon statement of facts that leaves the dominant issue in the case as one of a matter of law, thereby relegating the issue for a determination by the court rather than by jury”]. Such a motion, if considered favorably, blemishes the affirmative defense at the onset, before scrutinizing reams of facts and information harvested for the discovery process.   Such prejudice may be applied to the pleadings in total or in select portions.  

“The harsher ‘alternative to strike the affirmative defense,’ is a motion before the court to delete insufficient defenses or immaterial, redundant, impertinent, or scandalous statements from, in this case, the defendants’ pleading.  ‘This can either be oral or written. A motion to strike is also used to request elimination of inadmissible evidence to be deleted from the record’ (U.S. Legal Definitions). 

“The Court of Sangamon County, then, is being asked to consider arguments presented in the 14-page motion by ISEA, RSEA, et. al., and proceed by either characterizing the defendant’s affirmative argument of ‘reserved sovereign powers’ as legally unsupported in the first motion or inadmissible in the second…

“[However], 'No court may read a limitation into the Pension Protection Clause that is not expressly stated in it, and its expansive language contains no exception for any exercise of the State’s alleged ‘reserved sovereign powers’ (p.5/14 Case No. 2014-MR-1).  In fact, the joint motion presents an additional reason in that the same drafters were careful to include ‘state powers’ in the preamble of §22 of Article I in the Illinois Constitution to directly limit the right of an individual to bear arms.  But not so in the Pension Protection Clause…

“‘[T]he usual deference to nay legislative assessment of the reasonableness and necessity of an impairment is not even appropriate when a State’s financial self-interest is at stake…  That is to say, the need for money is simply no excuse for affecting a State’s financial obligations … The inability to meet what one provision of the constitution mandates provides no excuse to violate another’” – Justice Freeman (p.7/14).

“‘As held in Kanerva, neither the defendants nor the Court may ‘construe article XIII, section 5, in a way that the plain language of the provision does not support’ or ‘rewrite the pension protection clause to include restrictions and limitations that the drafters did not express and the citizens of Illinois did not approve’” Kanerva, 2014 IL115811, para 41” (p. 9/14)…

“‘[The Pension Protection Clause] ‘first mandates a contractual relationship between the employer and the employee, and secondly, it mandates the General Assembly not to impair or diminish these rights’” – Principle Sponsor Delegate Henry Green (p.10/14)…

“[D]elegates’ statements were made with an understanding that, ‘in the past appropriations to cover past pension obligations had been made a political football’ and ‘the party in power would just use the amount of state contribution to help balance budgets,’ jeopardizing the resources available to meet the State’s obligations to participants in its pension systems in the future’” (p.11/14).

“Because there exist no limitations, expressed or alluded to, within the Illinois Constitution, the Pension Protection Clause’s plan and expansive language, the history of precedent in this matter, the expressed meaning in records of delegates to the 1970 convention, and the adoption of the Illinois Constitution by its people – and ‘in Kanerva…the pension benefits of State retirement system members are constitutionally insulated from diminishment or impairment.  The affirmative defense therefore fails as a matter of law’ (p/13/14)…”

For the Notice of Motion, Click Here. 
For the complete commentary “Affirmative Defense: Motion to Strike AG Madigan's Police Powers Argument by John Dillon,” Click Here.

My Commentary:  

It has been said that a state’s “sovereign powers” refer to a general authority of a government to regulate for health, safety, morals, and welfare of its citizens. Nevertheless, past precedents show that “state legislatures exercise police power by passing laws in such areas as crime, land use, infrastructure, lotteries, discrimination, licensing of professionals, nuisances, schools, and sanitation… State and local governments… can use police power to enact laws promoting the general welfare only if the laws do not violate provisions in the U.S. Constitution, including the Contract Clause.”

Illinois legislators are not dealing with a threat to the “public’s safety, health, and morals as well as peace, well-being and order of the state”; nor are they dealing with an economic emergency of such magnitude that they are compelled to invoke powers to protect the state's citizens and, thus, serve a reasonable public purpose or need.

However, hundreds of thousands of citizens of Illinois are dealing with a calculated legislative thievery. Public employees and retirees are dealing with a violation to the Pension and Contract Clauses, the taking of property without due process of law and a violation of the Fourteenth Amendment and the equal protection of the laws.

Eighty years ago, Supreme Court Justice George Sutherland stated: “The framers wrote the Contract Clause for the very reason that they feared emergencies unwisely tempt legislatures to loosen contract rights… [The] meaning of constitutional provisions [at both state and federal levels] is changeless; it is only their application which is extensible… [Whatever tends to postpone or retard the enforcement of a contract, to that extent weakens the obligation].”

Nearly two hundred years ago, Chief Justice Marshall stated unequivocally: "The power of changing the relative situation of debtor and creditor, of interfering with contracts, a power which comes home to every man, touches the interest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. This mischief had become so great, so alarming, as not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith. To guard against the continuance of the evil was an object of deep interest with all the truly wise, as well as the virtuous, of this great community, and was one of the important benefits expected from a reform of the government.”

from my post:
The Contract Clause and the State of Illinois’ “reserved sovereign powers” in Senate Bill 1 



  1. From John Dillon:

    Thanks for posting, Glen. An excellent commentary was just the punctuation mark necessary to complete initial thoughts. I find myself wondering at the purity of the statements made by justices and their ilk in protection of people from these thieves and liars. In truth, Biss, Nekritz, Gabel and others are criminals bent on thievery of hard earned money from the innocent. You think we feel jaded as a result? Imagine what it must be like to be an honest judge (not one who owes favors to a current governor for hiring her daughter) and have to deal with the twists and turns of these con-men's intrigues. Biss and the others should be forced to read these words over and over.


  2. John, thanks for boiling this down to the essentials. You make clear what has been made complicated--a legal smoke screen to hide a simple theft. Your efforts on this issue, for the benefit of all retired teachers, have been huge. Thanks to Glenn and Ken as well. Your efforts amaze me.

    1. Mike,
      You are one of the reasons that teachers keep teaching. We keep each other educated, supported and actively engaged.