It is shameful and reckless when a governor and state representatives and senators who have sworn an oath to uphold the State and U.S. Constitutions ignore and challenge the Pension Protection Clause. Breaking a contract threatens the integrity of all laws that govern and protect all citizens of Illinois.
Any unilateral modification of the Pension Protection Clause should be seen as “the result of a violation of fair dealing,” as an accommodation for “only” the Illinois General Assembly who have stolen money from the public pension systems for decades and are, thus, “avoiding a pre-existing duty rule” (Professor of Law, Emeritus, Claude D. Rohwer and Professor of Law, Emeritus, Anthony M. Skrocki, Contracts in a Nutshell).
The significance of any modification of the Pension Protection 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 of which [they] will be deprived; […and] the extent to which the behavior of the [Illinois General Assembly] failing to perform or to offer to perform [or] comports with standards of good faith and fair dealing” (Rohwer & Skrocki).
The significant issue of so-called “pension reform” has always been its attack on retirees’ and public employees’ rights to constitutionally-guaranteed compensation and the governor’s and legislators’ obligation to safeguard those promises. An unconscionable and relentless constitutional challenge of those rights and benefits generates a serious threat to the security and sense of dignity of both retirees and public employees and creates an unfair economic disadvantage for a particular group of people and their families. This can never be legally or morally justified.
The promise to honor commitments and to pay for the public employees’ pension is of sufficient importance to all citizens of Illinois. Any so-called “pension reform” bill 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” (Rohwer & Skrocki).
Public employees are promised certain retirement compensation. It is earned; it is not a gratuity. All citizens of the State of Illinois have legal justification for their rights. 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 fifth and fourteenth amendments of the United States Constitution protect due process of law. The legal basis for protection of past-and-future public pension rights are established in both constitutions.
“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’ that government employers awarded themselves… The employees of governments are also taxpayers to the same governments and consumers of the government services that they themselves provide. A government contractually-based pension program, designed to be a permanent feature of the employment relationship and intended to provide definitely determinable replacement income to the government’s long-term workforce in retirement, is both sustainable and desirable on both economic and policy grounds...
“[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.
“There is no sound public policy reason to conclude that promises – based on the reasonable expectations of the contracting parties – should not be fully protected by the laws prohibiting or limiting the impairment of contracts” (Greenfield, Douglas L., Lahne, Susan G. (2012). How Much Can States Change Existing Retirement Policy? In Defense of State Judicial Decisions Protecting Public Employees’ Pensions. National Council of State Legislatures Legislative Summit, 1-16. From http://www.ncsl.org/documents/fiscal/DGreenfield_Presentation.pdf.
It is a matter of moral and legal concern for every citizen of Illinois to pay attention to any proposed violations of rights and benefits of the state’s public employees and retirees, for they will be forthcoming after the elections. It should be of vital concern for all citizens that the government of Illinois would ever want to prove its contracts are worthless, especially when the “most basic purposes of the impairment [of the Pension Protection] 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).
What the governor and the Illinois General Assembly need to be reminded of again and again is that the Illinois Supreme Court “has consistently invalidated amendments to the Pension Code where the result is to diminish benefits” (McNamee v. State, 173 Ill. 2d 433, 445 (1996)). “Any alteration of the pension system amounts to a modification of an existing contract between the State (or one of its agencies) and all members of the pension system, whether employees or retirees. A member is contractually protected against a reduction in benefits” (Kuhlmann v. Board of Trustees of the Police Pension Fund of Maywood, 106 Ill. App. 3d 603, 608 (1st Dist. 1982)).
We did. It's called the "Pension Protection Clause."