Friday, February 27, 2015

Opening Argument against State’s Sovereign Powers

“…The plain language of the Pension Protection Clause, the stated intentions of its drafters, and this Court's precedent all compel the conclusion that the Act [SB 1] exceeds the constitutional limits of legislative power. The Pension Protection Clause unambiguously prohibits the diminishment of public pension benefits. Notwithstanding the defendants' insistence that the Clause incorporates unstated exceptions to that absolute bar, the Clause cannot be read to include the defendants' implied terms. It contains no exception for exercises of the General Assembly's police powers or reserved sovereign powers.

In fact, the Pension Protection Clause was intended specifically to foreclose the type of justifications offered by the defendants in support of the Act. Equally flawed is the defendants' argument that the Pension Protection Clause itself is an unconstitutional relinquishment of the State's sovereign powers. Because the Pension Protection Clause is a constitutional restriction on the legislature's authority, it is not on par with contractual or statutory commitments that conceivably may yield to the General Assembly's sovereign powers. Given the drafters' intent to protect pension benefits in times of fiscal distress, the defendants' novel approach to constitutional interpretation is particularly unfounded. 

“In short, the circuit court correctly upheld the plain language and purpose of the Pension Protection Clause, faithfully adhered to this Court's precedent, and appropriately enforced a constitutional limitation on legislative power. Further, the circuit court correctly determined that the Act is not severable. Accordingly, the judgment of the circuit court should be affirmed. 


“The standard of review is de novo. Best v. Taylor Mach. Works, 179 Ill. 2d 367, 389 (1997). Where, as here, the parties have filed cross-motions for summary judgment, they ‘agree that only a question of law is involved, and they invite the court to decide the issues based on the record.’ Martin v. Keeley & Sons, Inc., 2012 IL 113270, 1125.

“The language used in a constitutional provision ‘should be given its plain and commonly understood meaning unless it is clearly evident that a contrary meaning was intended,’ and someone who argues that the language ‘should not be given its natural meaning understandably has the burden of showing why it should not.’ Coalition for Political Honesty v. State Bd. of Elections, 65 Ill. 2d 453, 464-65 (1976) 
(also observing that this is a ‘difficult burden’).

“If a statute is unconstitutional, ‘courts are obligated to declare it invalid,’ and this duty ‘cannot be evaded or neglected, no matter how desirable or beneficial the legislation may appear to be.’
Madclux v. Blagojevich, 233 Ill. 2d 508, 528 (2009). 

“Finally, ‘to the extent that there may be any remaining doubt regarding the meaning or effect’ of the ‘pension protection provisions’ in the Pension Protection Clause, ‘we are obliged to resolve that doubt in favor of the members of the State's public retirement systems.’ Kanerva, 2014 IL 115811, 1155.


“A. The Plain Language of the Pension Protection Clause Defeats
Any Defense of the Act.

“On its face, the Pension Protection Clause is absolute and contains no exceptions:

‘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.’

“See Ill. Constitution, Art. XIII, § 5. The Pension Protection Clause does two distinct things. First, it deems membership in State and certain other public pension systems to be a contractual relationship with the employee that is ‘enforceable’ by the courts. Id. Second, it restricts legislative power to modify the benefits of that contractual relationship by mandating that such benefits ‘shall not be diminished or impaired.’ Id. That second provision has independent significance and must be given effect.

“The defendants do not contend that the plain language of the Pension Protection Clause includes an express reference to police powers. Instead, they insist that the Contract Clause (Art. I, § 16) and its particular limitations are implicitly ‘incorporate[d]’ into the Pension Protection Clause. (Def. Br. at 19.) That argument is fundamentally flawed for several reasons.

“The defendants' argument turns the plain text of the Pension Protection Clause on its head. In the defendants' view, the absence of an explicit disavowal of an implied exception for the exercise of police powers in the Pension Protection Clause means that there is an implied exception in the Clause. (Def. Br. at 44-45.)

“In essence, they would require an explicit statement in the Pension Protection Clause that it has no implied exceptions. That, however, is precisely the opposite of this Court's approach to constitutional and statutory interpretation. See Kanerva, 2014 IL 115811, Ill 41 (refusing to read restrictions and limitations into the Pension Protection Clause ‘that the drafters did not express and the citizens of Illinois did not approve’); Prazen v. Shoop, 2013 IL 115035, ¶ 38 (this Court ‘can neither restrict nor enlarge the meaning of an unambiguous statute’); Henrich v. Libertyville High Sch., 186 Ill. 2d 381, 394-95 (1998) (same).

“Moreover, when the drafters of the Constitution intended to create exceptions for exercises of police power, they knew how to do so explicitly. See Ill. Constitution, Art. I, § 22 (‘Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed’) (emphasis added). The drafters chose not to include such an exception in the clear and unambiguous terms of the Pension Protection Clause.

“Contrary to the defendants' argument, the Pension Protection Clause's guarantee that pension benefits ‘shall not be diminished or impaired’ does not mirror the language of the Contract Clause. In addition to prohibiting the impairment of pension benefits, the Pension Protection Clause guarantees that such benefits shall not be ‘diminished.’ See Ill. Constitution, Art. XIII, § 5. The word ‘diminished’ appears nowhere in the Contract Clause. See III. Constitution, Art. I, § 16.


“When the word ‘diminished’ is used elsewhere in the Constitution, it is given absolute effect. See Ill. Constitution, Art. VI, § 14 (judicial salaries ‘shall not be diminished to take effect during their terms of office’); see also Jorgensen v. Blagojevich, 211 111. 2d 286, 316 (2004) (giving absolute effect to section 14 of Article VI).

“Because it defeats their preferred interpretation, the defendants attempt to read the word ‘diminished’ out of the Pension Protection Clause. The defendants argue that the word ‘diminished’ is synonymous with ‘impaired’ and is a mere redundancy. (Def. Br. at 29-30.) Their attempt to reduce "diminished’ to a redundancy runs afoul of a fundamental principle of constitutional interpretation: ‘[E]ach word, clause or sentence must, if possible, be given some reasonable meaning.’ Hirschfield v. Barrett, 40 Ill. 2d 224, 230 (1968); see also Oak Park Fed. Say. & Loan Ass 'n v. Village of Oak Park, 54 III. 2d 200, 203 (1973) (same)…”

from Brief of ISEA RSEA Heaton and Harrison Plaintiffs-Appellees

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