July 28, 2015
By: Greg Hinz
Is the battle over Illinois pension reform headed to the U.S. Supreme Court?
Illinois Attorney General Lisa Madigan is raising that possibility. In a petition filed late yesterday, she formally asked U.S. Supreme Court Justice Elena Kagan for more time to consider asking the high court to review recent local court decisions requiring full payment of public employee pensions.
Madigan’s office asked Kagan, who handles the initial review of petitions from Illinois, to grant a 35-day extension to file a potential writ of certiorari, seeking review of a unanimous Illinois Supreme Court decision in May that tossed out legislation reforming state employee pensions because it violated provisions of the Illinois Constitution. Without the extension, the state would need to file any petition for review of the case in August.
Madigan had argued in the Illinois Supreme Court case that benefit cuts approved by the General Assembly are necessary for the state’s fiscal health and are a reasonable use of its “police powers.” The state’s highest court instead found that the pension benefits are a contractual right guaranteed by the state constitution that the government cannot reduce.
In her petition to Kagan, Madigan said the case “raises important issues regarding the reserved powers doctrine of the U.S. Constitution, which prohibits a state from surrendering ‘an essential attribute of its sovereignty.’ ”
The high court may need to decide “whether the reserved powers doctrine prevents a state from abdicating its police powers authority to modify its own contractual obligations in extreme circumstances” and “if not, whether the Illinois Supreme Court identified the correct standard by which the validity of a state’s exercise of its police power is judged,” the petition said.
Madigan spokeswoman Eileen Boyce downplayed the significance of the petition, terming it “a fairly routine request. We’re reviewing all of our options before deciding on the next step.”
But Boyce could not immediately say when—or if—an Illinois attorney general had ever considered appealing an Illinois Supreme Court decision of this magnitude to the U.S. Supreme Court. And she said the office also is reviewing last week’s Cook Cook County Circuit Court decision that threw out city pension reform on the same constitutional grounds.
Asked flatly if Madigan is considering taking the matter to the U.S. Supreme Court, Boyce replied, “We are continuing to consider all of the next best steps.”
The attorney general’s office is apparently betting that the case presents the U.S. Supreme Court with an opportunity to weigh in on a growing national debate about the influence of public employee unions.
In 2014, the high court ruled that unions could not collect fees from one particular class of public employees who did not want to join. The case, Harris v. Quinn, involved home-care workers who were hired by individual customers although their fees were covered by Medicaid. The workers did not want to belong to the union that their co-workers had selected. But Illinois law required them to pay their “fair share” for the costs of union representation.
The court, in 5-4 opinion written by Justice Samuel Alito, held that requiring the payments violated the workers’ First Amendment rights. It since has accepted a similar case.
Any move to federalize the state pension case likely would draw fierce opposition from labor groups and other employee organizations that have prevailed in state courts so far. And it certainly would throw an unpredictable twist into state politics as the 2016 election season nears.
Labor groups have not yet commented.
2 p.m. update:
The unions are out with a statement, and while they’re not very happy, it’s relatively restrained:
“The Illinois Supreme Court ruled unanimously that the state Constitution, ratified by the people, protects the pensions,” Illinois AFL-CIO President Michael Carrigan said, speaking on behalf of the We Are One Illinois coalition. “This is solely a matter of state law. . . .We once again urge the state to devote its efforts to real pension funding solutions, not further litigation.”
And John Fitzgerald, whose Chicago law firm Tabet DiVito & Rothstein represented retired teachers in the Illinois Supreme Court case, said the firm will oppose the cert petition: “This case involves purely issues of Illinois law and presents no basis on which a certiorari petition could be granted. The Illinois Supreme Court’s unanimous interpretation of the Illinois Constitution’s Pension Protection Clause is conclusive.”