Monday, March 6, 2017

To the Sponsors of House Joint Resolution Constitutional Amendment 18: An Unconstitutional Attempt to Amend the Pension Protection Clause






Most Illinois citizens (who have read this blog) recognize the incessant schemes of the Civic Federation, Civic Committee, Illinois Policy Institute, Crain's Chicago Business, and their minions in the Illinois General Assembly (and governor and mayor) that blame public employees and retirees for the chronic Illinois budget crisis and unfunded liability.

Most Illinois citizens also recognize that some politicians, who lack moral sensibility and legal understanding, have no qualms about amending the Pension Protection Clause, stealing money from the public pension funds, and ignoring the Illinois Supreme Court’s ruling against any form of unconstitutional public pension theft.


Public employees and retirees know about the vast resources of money and influence the Civic Federation, Civic Committee, Illinois Policy Institute, Crain's Chicago Business, and their minions in the Illinois General Assembly (and governor and mayor) have committed to reforming public employees' and retirees' rights and benefits.


Public employees and retirees know about unethical and incompetent politicians and their wealthy benefactors who continue to choose and ignore the legal court precedents, the essential history and necessity of the Pension Protection Clause, and what it means to uphold the Illinois and U.S. Constitutions.


Public employees and retirees know that to amend the Pension Protection Clause is to attack future public employees’ rights to a constitutionally-guaranteed compensation, and that this can never be legally or morally justified, especially when Illinois politicians have never fully funded the public pension plans for several decades.


Public employees and retirees know there are no equal rights when resolutions and proposals are made to underpin and to sustain the fortunes of a few at the expense and victimization of the state’s public employees and retirees.


Public employees and retirees know that to possess a right to a promised deferred compensation, such as a defined-benefit pension, is to assert a legitimate claim with all Illinois legislators to protect that right, and that fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents.


Public employees and retirees know the Pension Protection Clause is a binding legal commitment and requirement of justice, and that justice demands we keep our covenants with one another: for when legislators swear an oath to uphold the State and U.S. Constitutions, then citizens of Illinois have also acquired the right to expect that they will uphold that pledge. This is a matter of important legal and moral concern for all citizens of Illinois, for all legal claims are validated by a moral framework since the concept of justice is grounded in ethics and legality. 


According to Eric M. Madiar, former Parliamentarian to Illinois Senate President John Cullerton in 2015, the last attempt at pension reform [Public Act 98­0599 or the senate bill that attempted to diminish and impair Article XIII, Section 5 in December 2013] "was not a response to an unknown or unforeseeable problem, but rather a response to a crisis for which the General Assembly is largely responsible. The court further found that the Act was not the least restrictive means the State could have used to address the problem, but ‘an expedient to break a political stalemate.’ In addition, the court indicated that the Act was tantamount to a taking of private property because the Act failed to distribute the burdens of pension funding evenly among Illinoisans let alone the State’s contract partners. The court explained that the U.S. Constitution ‘bar[s] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ In short, whether under a Contract Clause or Takings theory, the same arguments that prevailed in the Pension Reform decision against Public Act 98­0599 would equally apply to the… proposed amendment. As a result, the proposal amendment does not offer a plausible path to unilaterally reduce the fiscal burden of State and local pension obligations…” (Read Amending Article XIII, Section 5 (The Pension Protection Clause) of the Illinois Constitution). 


Moreover, HJRCA 18 (or any other attempt to amend the Pension Protection Clause) will not reduce the state systems’ current $130+ billion unfunded liability that was largely caused by past Illinois General Assemblies and Illinois governors; amending the Pension Protection Clause will not address the real fiscal issue triggered by the state’s out-sized pension debt—in other words, how to amortize the $130+ billion debt owed to the five state-sponsored retirement systems in a feasible way. It would also take three-fifths of the members elected to each house of the General Assembly.


To anyone attempting to amend the Pension Protection Clause: my response to you is to read Article XIII, Section 5: “Pension and Retirement Rights” of the Illinois Constitution. Read Article 1, Section 16: “Ex Post Facto Laws and Impairing Contracts” of the Illinois Constitution. Read Article I, Section 15: “Right of Eminent Domain” (the Takings Clause) of the Illinois Constitution.  Read Article I, Section 2: “Due Process and Equal Protection of the Illinois Constitution. Read Article 1, Section 10 of the United States Constitution: “No State shall… pass any… ex post facto Law, or Law impairing the Obligation of Contracts…” Read Amendment V, Section 1 of the United States Constitution: No person shall be... deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation. Read Amendment XIV, Section 1 of the United States ConstitutionDue Process and Equal Protection.” To ignore the Fifth and Fourteenth Amendments of the U.S. Constitution and change laws that protect one group of people is to ignore due process and equal protection of the laws that guarantee contractual agreements as well. Finally, read the Illinois Supreme Court ruling: docket number 118585, filed on May 8, 2015!   


It is shameful that a few policymakers, the Illinois Policy Institute, Crain's Chicago Business, the Chicago Tribune, et al. are still willing to renege on a guaranteed constitutional contract when it's the state legislators who are the debtors. It is legally and morally wrong to modify public employees’ contractual rights and benefits prospectively and retroactively when there are legal and ethical ways to address the pension debt problem, such as through debt and revenue restructuring. Legal and moral sense dictates that all members of the Illinois General Assembly must align with the U.S. and State Constitutions and sanction the vested rights of its middle-class public employees.


To the Sponsors of House Joint Resolution Constitutional Amendment 18  (Sosnowski, Ives, Morrison, Skillicorn, Long, Spain, Phillips, Wehrli and McDermed), HJRCA 18 is unethical, duplicitous, and illegal. HJRCA 18 would not only destroy the public employees’ and retirees’ financial security, but it would also destroy the Illinois teaching profession; damage the communities that these people support, serve and protect; and ultimately the state's economy.



—Glen Brown



5 comments:

  1. What ever happened to this? Any update?

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    1. I met with Wehrli in March 2017. He told me nothing would happen with the resolution. I asked him "why did you sponsor it then?" As I recall, he did not have a logical answer. I assume the reasons I provided him and on this post were sufficient. The resolution's last co-sponsor was on April 28, 2017.

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  2. Amending the Illinois Pension Protection Clause:

    “…So long as the governor is considering a change to the Illinois Constitution, he should not stop with just one. Pritzker should add a constitutional amendment to change the state’s pension clause — the one that has stood in the way of pension reform for decades now…

    “The Illinois Constitution’s best-known codicil is the one that declares pensions are a contract that can never be ‘diminished or impaired.’ Those seemingly common sense words have stood in the way of several fair-minded reform plans, including one passed by the Democratic-led legislature in 2013 that the state Supreme Court struck down two years later.

    “Pritzker in his budget address said the state is obligated ‘to pay the pensions that are owed.’ How that is defined can be a matter of debate, yet the courts have so broadly interpreted the obligation that no meaningful reform can get through. A new pension clause would give policymakers options they do not currently have…

    “Pritzker may not need a package deal of constitutional reforms. He probably can get the votes to pass his tax amendment without a pension fix, too. But the progressive tax alone won’t solve the state’s fiscal problems.

    “Passing both amendments together would be a good sign that voters in all income brackets can look forward to some measure of relief from their new governor. Gov. Pritzker should begin that process now”—David Greising, president of the Better Government Association, a Chicago-based civic watchdog organization (The State Journal-Register, March 18, 2019).

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    1. Mr. David Greising:

      There is nothing ambiguous or vague about these decrees:

      “No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws” (The Constitution of the State of Illinois, Article 1—Due Process and Equal Protection, Section 2).

      “Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law” (The Constitution of the State of Illinois, Article 1—Right of Eminent Domain, Section 15).

      “No ex post facto law, or law impairing the obligation of contracts…shall be passed” (The Constitution of the State of Illinois, Article I—Ex Post Facto Laws and Impairing Contracts, Section 16/The Constitution of the United States, Article 1—Limitations on Powers of States, Section 10).

      “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” (The Constitution of the State of Illinois, Article XIII—Pension and Retirement Rights, Section 5: The Pension Protection Clause).

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    2. 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.

      If there is anything else we might examine regarding the Pension Protection Clause and its relationship to a reality that reveals repeated attempts by the wealthy elite, their politicians and the media to amend constitutionally-guaranteed pension benefit rights, perhaps we should also dispute these relentless attacks on the very intelligibility of the English language.

      As stated, the foundation of public employees’ and retirees’ rights is the State and U.S. Constitutions that directly support any claims against them. State contracts are also protected by the federal government. Understandably, the 5th and 14th amendments of the United States Constitution protect due process of law. In Illinois, the legal basis for protection of past-and-future public pension rights are established in both constitutions.

      Unfortunately, there are people who want to amend the Pension Protection Clause. They do not care whether teachers and other public employees have contributed responsibly to their pension funds or that teachers will receive little to no Social Security when they retire. They do not care whether retired teachers’ and other public employees’ defined-benefit pension plans are a fundamental source of economic stimulus to communities in Illinois and the only retirement income for hundreds of thousands of people.

      They do not care that the State of Illinois has not consistently paid its full constitutional and obligatory contributions to the public pension systems throughout the decades, that this money was diverted to other operating expenses and special interests’ groups, that the State of Illinois saved billions of dollars by not paying what actuaries have calculated the Teachers’ Retirement System should have received throughout the years, that this theft also enabled the State of Illinois to provide services for its citizenry without raising taxes during that time, and that this money was deferred-earned income for teachers in Illinois.

      Furthermore, they do not care that an amendment to Article XIII, Section 5 of the Illinois State Constitution does not nullify the $134 billion unfunded liability that the state continues to perpetuate by not fully funding the pension systems.

      To possess a right to a promised deferred compensation, such as a pension, is to assert a legitimate claim with all Illinois legislators to protect that right. There are no rights without obligations. They are mutually dependent. Fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents.

      The keeping of contractual promises is the Illinois General Assembly’s legal duty. It is something the State and U.S. Constitutions require them to do whether they want to or not. All citizens of the State of Illinois have legal justification for their rights, especially for compensation they have earned. For rights and obligations are logically correlative, and a citizen’s rights imply or complement the state legislators’ obligation to guarantee them.

      -Glen Brown

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