“Fitzgerald
pointed to four legal cases: Kanerva v.
Weems, Heaton v. Quinn (Yes. THAT Quinn), Jones v. the Municipal
Employees Annuity and Benefit Fund of Chicago and Matthews v.
the Chicago Transit Authority.
“What
were the significant legal conclusions of each as they concerned the pension
protection clause, Article XIII, Section 5 of the Illinois Constitution which
states that benefits are a contractual obligation that cannot be diminished or
impaired?
“With Kanerva v.
Weems, the court established the principle that protected
benefits went beyond annuities and included such things as health insurance
benefits.
“With Heaton v.
Quinn the court confirmed that a crisis,
particularly one created by the state, is not an excuse to violate the
constitution. ‘It is a summons to defend it,’ wrote
the court in its unanimous opinion.
“With Jones v. the
MEABF of Chicago, the court said that it means
nothing that a union gives political support to legislation reducing pension
rights if that result does not result from collective bargaining and a vote of
the members.
“In Matthews v.
the CTA, the court wrote that constitutionally-protected benefit
rights can be waived through collective bargaining but cannot be
retroactively applied to those already retired.
“While
the 1970 Constitution does protect pension benefits, it is less clear on how
the benefits are to be funded. Fitzgerald explained that those at the
convention discussed it, but they did not anticipate the degree to which the
politicians of the state would allow the funding to be diverted. They believed
that action would be taken before a system would go into default.
“But
what constitutes default? Fitzgerald pointed to the case of the City of
Harvey and the Harvey Firefighters Pension Fund. In that case,
the pension fund was only 27% funded, and actuaries anticipated it would go
belly up within five years.
“An
appellate court judge ruled in summary judgment that this constituted
impending default and ordered the City of Harvey to implement
a time-line levy to make the pension system whole.
“Some
have wondered what might happen if the state pension funds were to go into
default. Fitzgerald believes the Harvey
Fire-fighters’ case gives us some clues.
“In
that case the judge found that there is a legal threshold for what constitutes default. In
spite of what Governor Rauner has suggested, Congress cannot amend the state
constitution and eliminate the pension protection clause. The pension debt must
be paid. The legislature can do it. If it refuses to act on their legal and
moral obligation, a court can and will order it done.
“To
those who have threatened state bankruptcy, as happened with the City of
Detroit, Fitzgerald argued that bankruptcy cannot be applied to just one debt,
like the pension debt. Bankruptcy is applied to all debts. And states cannot
file bankruptcy anyway as long as they have the power to raise revenue.
“These
were my notes. I am not an attorney. If I did not represent John Fitzgerald’s
presentation with perfect accuracy, I apologize. That’s why they make the big
bucks”—Fred
Klonsky.
Commentary:
2014 Kanerva
v. Weems (July 3):
The
Pension Protection Clause makes it “clear that if something qualifies as a
benefit of the enforceable contractual relationship resulting from membership
in one of the State’s pension or retirement systems, it cannot be diminished or
impaired… [The State of Illinois or anyone else] may not rewrite the
Pension Protection Clause to include restrictions and limitations that the
drafters did not express and the citizens of Illinois did not approve... [P]ension
benefits are insulated from diminishment or impairment by the General
Assembly…” (Kanerva v. Weems, 2014 IL 115811).
“…Under Kanerva, it
is clear that the Illinois Constitution protects pension and retirement
benefits from the diminishments and impairments that the Act imposes, and that
the plaintiffs are entitled to their benefits without any diminishment or
impairment from the respective State retirement systems. The very purpose of
the Pension Protection Clause was to constitutionally guarantee the payment of
pension and retirement benefits, to remove from the General Assembly the power
to impair or diminish those pension benefits, and to eliminate the very
argument that the defendants raise by their affirmative defense. There can
be no ‘reserved sovereign power’ to do something that the Illinois Constitution
expressly prohibits…” (from Update
for Pension Lawsuit: Motion Filed Today, August 21st, in the Circuit Court for
the Seventh Judicial Circuit in Sangamon County, Illinois).
2015
MARY J. JONES et al., Appellees, v. MUNICIPAL EMPLOYEES’
ANNUITY & BENEFIT FUND OF CHICAGO et al., Appellants (March
24):
“…In this case, it is undisputed that the unions were not
acting as authorized agents within a collective bargaining process. Thus,
we need not resolve whether the vote taken by union representatives as
expressed in the Brandon affidavit bound members of the Funds in a collective
bargaining process. Rather, we agree with the trial court that ‘these
negotiations were no different than legislative advocacy on behalf of any
interest group supporting collective interests to a lawmaking body.’ The
individual members of the Funds have done nothing that could be said to have
unequivocally assented to the new terms or to have ‘bargained away’ their
constitutional rights. Accordingly, nothing in the legislative process that led
to the enactment of the Act constituted a waiver of the Funds members’
constitutional rights under the pension protection clause… The
judgment of the circuit court declaring Public Act 98-641 to be
unconstitutional and permanently enjoining its enforcement is affirmed.”
“[Furthermore,
consider that] in the context of the collective bargaining process for public
employees, employees designate a particular union as their exclusive agent for
collective bargaining negotiations. See 5 ILCS 315/6 (West 2014). The cases
that defendants rely upon to support a bargained-for exchange argument involved
agreements reached through the collective bargaining process. See Ballentine v.
Koch, 674 N.E.2d 292, 296 (N.Y. Ct. App. 1996) (“[B]ecause plaintiffs
designated the PBA as their agent for the collective bargaining negotiations at
issue here and were thus bound by its actions taken on their behalf during the
negotiation process [citation], the PBA’s waiver of the constitutional
protections of [New York’s pension protection clause] is valid as to plaintiffs
***.”); Schacht v. City of New York, 346 N.E.2d 518, 519 (N.Y. Ct. App. 1976)
(“Plaintiff, having designated the union to be her agent for collective
bargaining purposes, is bound by agreements made by that union on her
behalf”)…” (Jones v. Municipal Employees' Annuity and Benefit Fund,
Circuit Court). The Illinois Supreme Court affirmed the decision on
March 24, 2016: (Jones v. Municipal Employees' Annuity &Benefit
Fund, 2016 IL 119618).
2015 Doris
Heaton, et al. v. Pat Quinn, in his capacity as Governor of the State of
Illinois, et al. (May 8):
“…The concerns of the delegates who drafted article XIII,
section 5, and the citizens who ratified it have proven to be well founded.
Even with the protections of that provision, the General Assembly has
repeatedly attempted to find ways to circumvent its clear and unambiguous
prohibition against the diminishment or impairment of the benefits of
membership in public retirement systems. Public Act 98-599 is merely the latest
assault in this ongoing political battle against public pension rights. As we
noted earlier, through that legislation the General Assembly is attempting
to do once again exactly what the people of Illinois, through article XIII,
section 5, said it has no authority to do and must not do… The judgment of
the circuit court declaring Public Act 98-599 to be unconstitutional and
permanently enjoining its enforcement is affirmed” (Heaton
v. Quinn, 2015 IL 118585).
“…As
the Illinois Supreme Court has explained, ‘once an individual begins work and
becomes a member of a public retirement system, any subsequent changes to the
Pension Code that would diminish the benefits conferred by membership in the
retirement system cannot be applied to that individual.’ In re Pension Reform
Litigation (Heaton v. Quinn), 2015 IL 118585, ¶ 46; see also Kanerva v. Weems,
2014 IL 115811, ¶ 38; Jones v. Municipal Employees’ Annuity & Benefit Fund
of Chicago, 2016 IL 119618, ¶¶ 36-47.
2016 JERRY
MATTHEWS et al., Appellees and Cross-Appellants, v. CHICAGO TRANSIT AUTHORITY
et al. (Retirement Plan for Chicago Transit Authority Employees et al.,
Appellants and Cross-Appellees) (May 5):
“…[A]
contract right becomes vested when the employee has fulfilled all of the
necessary qualifications and obligations for enjoyment of the right, [as in the
case of retirees]. Lawrence, 152 Ill. App. 3d at 197-98 (quoting Kulins, 121
Ill. App. 3d at 525-27); see also Navlet v. Port of Seattle, 194 P.3d 221, 237
(Wash. 2008) (en banc)… Where all of the requisite specifications for the
present or future enjoyment of a right have been achieved, the right is
considered to be vested…” Black’s Law Dictionary 1699 (9th ed. 2009). (qtd. in
Matthews v. CTA, 2016 IL 117638).
Can
the Unions and the Illinois General Assembly Bargain Away
Constitutionally-Guaranteed Benefits through Consideration for Retirees? The
answer is unequivocally NO regarding retirees. Retirees are
not part of the collective bargaining process, only active employees are.
However, some people believe that the Illinois Supreme Court had
suggested that a consideration supported by collective bargaining for
current employees is a possibility (Matthews
v. Chicago Transit Authority, 2016 IL 117638).
Some
people believe that a legitimate consideration means not
diminishing an already existing constitutionally-guaranteed
benefit. I am one of those people; however, my strongest beliefs have
always been based upon moral perspectives reinforced by the most
current legal analyses.
-Glen
Brown
Thanks, Glen.
ReplyDelete“[T]he Supreme Court has recognized… that if a pension fund were ‘on the verge of bankruptcy or imminent bankruptcy’ and ‘benefits [were] in immediate danger of being diminished,’ then pension participants would have a cause of action in circuit court to enforce their right to receive payments(McNamee, 173 Ill. 2d at 446-47, 62 N.E.2d at 1166; Sklodowski, 182 Ill. 2d at 233, 695 N.E.2d at 379.).
ReplyDelete“Since the Clause acts as a restriction on legislative power, it is enforceable by the courts. (Client Follow-Up Co. v. Hynes, 75 Ill. 2d 208, 390 N.E.2d 847 (1979) (‘Limitations written into the Constitution are restrictions on legislative power and are enforceable by courts.’). See also People ex rel. Hilger v. Myers, 114 Ill. App. 2d 478, 252 N.E.2d 924 (1st Dist. 1969)...
“This conclusion comports with the drafters’ original intent, (See IV Proceedings 2926 (statements of principal sponsor, Delegate Kinney) (defining the word ‘enforceable’ as ‘meant to provide that the rights established shall be subject to judicial proceedings and can be enforced through court action’; and defining the word ‘impaired’ as ‘meant to imply and to intend that if a pension fund would be on the verge of default or imminent bankruptcy, a group action could be taken to show that these rights should be preserved’); id. (Statements of cosponsor, Delegate Kemp) (stating he understood the Clause as making ‘certain that irrespective of the financial condition of a municipality or even the state government that those persons who have worked for often substandard wages over a long period of time could at least expect to live in some kind of dignity during their golden years’) (emphasis added) and the voters’ understanding that pension recipients would receive their full benefits… (See supra notes 196-202 and accompanying text (discussing the Convention’s official explanation and newspaper articles).
“In sum, if the Illinois Supreme Court were confronted with a circumstance where a pension fund was on the verge of default and pension payments were diminished, then the court would most likely permit a mandamus action to proceed and resolve that action in the same manner as Jorgenson v. Blagojevich [2004](211 Ill. 2d 286, 811 N.E.2d 652 (2004). See People ex rel. Sklodowski v. Illinois Retired Teachers Association, 284 Ill. App. 3d 809, 817-18, 674 N.E.2d 81, 86-87 (1st Dist. 1996)…” ((IS WELCHING ON PUBLIC PENSION PROMISES AN OPTION FOR ILLINOIS?
AN ANALYSIS OF ARTICLE XIII, SECTION 5 OF THE ILLINOIS CONSTITUTION by Eric M. Madiar, former Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate).
Well done summary,Fred. Thanks. I will share it with the DuPage Unit.
ReplyDeleteGary