Friday, December 19, 2014

It is quite paradoxical that the Illinois Constitution matters when it comes to appointing a Comptroller, but not when protecting the constitutionally-guaranteed pensions of the state’s public employees and retirees





GOP Leaders React to Special Session Call:

Statement from Senate Republican Leader Radogno and House Republican Leader Durkin:

“The Illinois Constitution requires the Governor-elect to appoint a new comptroller to a four-year term. A partisan and constitutionally-dubious eleventh hour law would face a certain legal challenge and force the people of Illinois to endure a protracted and legal battle that no one wants. The only Constitutionally responsible choice is to allow the governor-elect to appoint a Comptroller to a four-year term."

Special Election: Legal Analysis

The Illinois Supreme Court has held that “the State constitution is supreme within the realm of State law.” See People v. Gersch, 553 N.E.2d 281, 287 (Ill. 1990). In this case, Section 2 of Article V of the Illinois Constitution governs the terms of office and the timing of elections for state officers, including Comptroller. It speaks in clear and mandatory terms in two important respects.

First, the “officers of the Executive Branch shall hold office for four years beginning on the second Monday of January… until their successors are qualified.” As the Attorney General indicated in her advisory opinion, that means that a vacancy will occur in the Comptroller’s Office for the term of office that runs from January 12, 2015 to January 14, 2019. Second, Section 2 also provides that the state officers, including the Comptroller, “shall be elected at the general election in 1978 and every four years thereafter.” 

If the General Assembly were to pass a state law that creates a special election for the Comptroller in 2016, that law would violate the express terms of Section 2 in two ways. First, it would presumably create two two-year terms of office, despite the fact that Section 2 clearly provides only for a four-year term that runs until January 14, 2019. Second, it would provide for an election of a state officer outside of the schedule established by Section 2 requiring that the election of the Comptroller will be held every four years after 1978.

Section 7, Article V dealing with vacancies does not authorize the General Assembly to order a special election to fill a vacancy or replace a person who is appointed to fill a vacancy. Rather it says that the Governor “shall fill the office by appointment” and that person shall “hold office until the elected officer qualifies or until a successor is elected and qualified as may be provided by law.”

The phrase “as may be provided by law” modifies “qualified” and not the word “elected.” In fact, the only support that this language was intended to provide for a special election comes from statements of a delegate to the 1970 Constitutional convention. Those statements directly conflict with the clear language of Section 2, as noted above. When a conflict exists between the express language of the Constitution and any legislative history, the Illinois Supreme Court states that “the best indication of the intent of the drafters is the language which they voted to adopt.” See Coryn v. Moline, 374 N.E.2d 211, 213 (Ill. 1978). Where the adopted language is clear, as it is in Section 2, “it will be given effect without resort to other aids for construction,” including statements of individual delegates. See People ex rel. Baker v. Cowling, 607 N.E.2d 1251, 1253 (Ill. 1992). In this case, it is also important to note that the legislative history cited comes from the debate over Section 7, not Section 2 dealing with the term and timing of the election of state officers. Therefore, the direct conflict between the express language of Section 2 and the legislative history of Section 7 would likely be resolved by enforcing the clear terms of Section 2.

Our own review of the committee reports and verbatim transcripts from the Constitutional Convention show that the election schedule for constitutional officers established in Article V, Section 2 was deliberately intended by delegates to allow voters to concentrate their attention on the state election contests in those years, rather than risk that an informed debate of state issues would be overwhelmed by the sound and fury of a national presidential contest. Those intentions should not now be lightly set aside.

We do not contest the right of the General Assembly to seek a special election. That is within their authority and judgment to do so. In the case of a state officer, like the Comptroller, however, it would require a constitutional amendment that revises the clear and mandatory terms of Section 2. As for Governor-elect Rauner, his only authority under the Constitution, as currently constituted, is to appoint a person who will assume a four-year term on January 12, 2015.


A Commentary on Legislators' Hypocrisy (Redux):

So Illinois legislators of the GOP, what part of “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” (Article XIII, Section 5 of the Illinois Constitution) do you not understand? 

"[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… Further, the Clause’s prohibitory language against the diminishment or impairment of pension benefits is cast in absolute terms and lacks any exceptions…" (Is Welching on Public Pension Promises an Option for Illinois?).
 
To challenge the “Pension Clause” is to defy common understanding of its legal and moral principles and to believe that every word in the State and U.S. Constitutions might also be interpreted in an infinite, fabricated regression of definitions and interpretations. 

There is nothing transcendental or metaphysical about the 26 words found in the Constitution of the State of Illinois, Article XIII, Section 5. Pension and Retirement Rights. It does not require intuitive or a priori thinking to justify or verify this claim because we have learned the English language and the rules governing its use. We know what these words mean in relation to written, verbal, historical and cultural contexts.

Lexical definitions, denotations and connotations of the words “diminishment” and “impairment” are unequivocal. It is not necessary to break down these words into simple constituent parts unless, of course, we simply misunderstand them because of our stupidity, carelessness, intentionality or maliciousness. 

We cannot mistake the meaning of words such as “shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired” because we understand and speak the English language. If words in our State Constitution are to refer or mean anything, they must be commonly understood and accepted as they have been for decades. Moreover, if words are to refer to anything, they must also be understood through their use, role, employment and past agreements.

We have before us “the validity of decades of judicial precedents” that provide “the binding nature of legislation establishing pension commitments to government employees(Defending and Protecting Public Employees’ Pensions against the Legislative Siege). 

If there is anything else we might examine regarding the “Pension Clause” and its relationship to a reality that reveals repeated attempts by the wealthy elite, their politicians and the media to steal constitutionally-guaranteed pension benefit rights, perhaps we should also dispute the relentless attacks on the very intelligibility of the English language by these liars and thieves. We know the “Pension Clause” is valid because it is understood to be a contractual right and guarantee that public employees have earned. 

Though incompetent, corrupt politicians and their wealthy benefactors continue to ignore legal and moral terminologies and court precedents, logical and ethical people understand the essential history and necessity of the “Pension Clause” and know what it also means to uphold the State and U.S. Constitutions. 

An equally important and unfortunate issue arises when politicians/lawyers swear an oath to uphold the State and U.S. Constitutions in one context and then contradict their pledge in another context, made evident in Attorney General Lisa Madigan’s and Attorney Joshua Ratz’s sidestepping arguments or attempt to use “reserved sovereign powers” to break a constitutional contract (The Contract Clause and the State of Illinois’ “reserved sovereign powers” in Senate Bill 1). 

Logical and ethical people know that the context which states “membership in any pension or retirement system of the State… shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired” emerged because “prior to the [Pension] Clause’s adoption, nearly all public employees were members of mandatory pension plans that lacked constitutional protection as ‘contractual’ rights and could be adversely changed by the legislature at any time. These mandatory plans were also underfunded and no better funded than the State’s five pension systems today...

“[Logical and ethical people know] public employees believed constitutional protection was necessary because the State had historically failed to make its required contributions and because employees felt that the State would renege on its obligations should a fiscal crisis arise…

“[Logical and ethical people know] the drafters of the ‘Pension Clause’ were aware of the concerns raised and requests made by public employee groups, the State’s failure to properly fund the pension system, and the difference in legal protection afforded to persons participating in a mandatory and optional pension plan. These concerns, in turn, prompted the drafters to include the ‘Pension Clause’ in the [1970] Constitution…

“[Logical and ethical people also know] the drafters intended for the ‘Pension Clause’ to (1) protect pension benefit rights in all pension plans as ‘enforceable contractual rights’ as of when a public employee became a member of a pension system, and (2) bar the legislature from later unilaterally reducing those rights…” (qtd. in Illinois Pension Clause’s Convention Debates, Text and Historical Background, Eric M. Madiar).

P.S. Let's not forget this hypocrisy either: Madigan/Cullerton's letter.






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