In re Pension Reform Litigation

2015 IL 118585
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118585)
In re PENSION REFORM LITIGATION (Doris Heaton et al., Appellees,
v. Pat Quinn, Governor, State of Illinois, et al., Appellants).
Opinion filed May 8, 2015.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 At issue on this appeal is the constitutionality of Public Act 98-599 (eff. June 1,
2014), which amends the Illinois Pension Code (40 ILCS 5/1-101 et seq. (West
2012)) by reducing retirement annuity benefits for individuals who first became
members of four of Illinois’ five State-funded pension systems prior to January 1,
2011. Members of the retirement systems affected by Public Act 98-599 and groups
representing those members brought five separate actions challenging the validity
of the new law on the grounds that it violated numerous provisions of the Illinois
Constitution of 1970, including article XIII, section 5 (Ill. Const. 1970, art. XIII,
§ 5), popularly known as the pension protection clause.
¶2 All five actions were consolidated in the circuit court of Sangamon County. On
motions for partial summary judgment, judgment on the pleadings, and to strike an
affirmative defense, the circuit court found plaintiffs’ challenge to be meritorious,
declared Public Act 98-599 to be unconstitutional in its entirety as a violation of the
pension protection clause, and permanently enjoined its enforcement. In so doing,
the circuit court rejected defendants’ contention that the Act could be upheld,
notwithstanding its violation of the pension protection clause, based on the State’s
reserved sovereign powers. Because the circuit court’s judgment invalidated a
statute of the State of Illinois, appeal lay directly to this court. Ill. S. Ct. R.
302(a)(1) (eff. Oct. 4, 2011). At the request of the State, we expedited briefing and
argument. 1 For the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 Illinois has established five State-funded retirement systems for public
employees: the General Assembly Retirement System (GRS) (40 ILCS 5/2-101
et seq. (West 2012)); the State Employees’ Retirement System of Illinois (SERS)
(40 ILCS 5/14-101 et seq. (West 2012)); the State Universities Retirement System
(SURS) (40 ILCS 5/15-101 et seq. (West 2012)); the Teachers’ Retirement System
of the State of Illinois (TRS) (40 ILCS 5/16-101 et seq. (West 2012)); and the
Judges Retirement System of Illinois (JRS) (40 ILCS 5/18-101 et seq. (West
2012)). These systems provide traditional defined benefit plans under which
members earn specific benefits based on their years of service, income and age. All
are subject to the pension protection clause of our state constitution, which
provides: “Membership in any pension or retirement system of the State, any unit
of local government or school district, or any agency or instrumentality thereof,
1
In retrospect, the State’s “Motion for Accelerated Docket” is perplexing. The State requested
expedited briefing and argument on the grounds that a prompt decision by this court was necessary
to assist the legislature and the Governor in formulating a budget for the next fiscal year. Because
implementation of the law has already been enjoined, a decision by this court could alter the
budgetary landscape for the upcoming fiscal year only if we allowed some or all of the law to take
effect immediately. When the State ultimately filed its brief, however, that is not the relief it sought.
Rather, its principal request was that we remand to the circuit court for further proceedings,
including an evidentiary hearing, with respect to its claim that the legislation challenged here is a
proper exercise of the State’s police powers. Even if the State had prevailed, there is no reasonable
possibility that such proceedings, and the appeals which would inevitably follow, could be
completed prior to the May 31, 2015, deadline for passage of the new State budget.
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shall be an enforceable contractual relationship, the benefits of which shall not be
diminished or impaired.” Ill. Const. 1970, art. XIII, § 5.
¶5 Among the benefits which members of the five State-funded retirement systems
are entitled to receive are retirement annuities. Kanerva v. Weems, 2014 IL 115811,
¶ 3. The amount of a member’s retirement annuity and how soon a member is
eligible to begin receiving annuity payments depends on when the member first
began making contributions into one of the retirement systems. Members who first
contributed prior to January 1, 2011, receive what are known as “Tier 1” annuity
benefits. Members first contributing on or after January 1, 2011, receive a lower
level of benefits designated as “Tier 2.” See Pub. Act 96-889 (eff. Apr. 14, 2010).
Public Act 98-599, the legislation challenged in this case, is directed primarily at
Tier 1 annuities and is limited in its application to benefits earned under the GRS,
SERS, SURS and TRS systems. Annuities paid to judges under the JRS system
were intentionally excluded from the law and are not affected by it.
¶6 Tier 1 retirement annuity benefits and eligibility requirements differ somewhat
between the various systems. Because they all operate in approximately the same
way, however, we will choose just one, SERS, to illustrate their basic features.
¶7 Members of SERS are eligible to retire at age 60 if they have at least eight years
of credited service. They may retire with full benefits at any age if their age plus
years of service credit equal 85. They are also eligible to retire if they are between
the ages of 55 and 60 and have at least 25 years of credited service, but their benefit
will be reduced by half of 1% for each month they are under the age of 60. 40 ILCS
5/14-107, 14-108 (West 2012).
¶8 The amount of the retirement annuity benefit under SERS is calculated based
on (1) the member’s final average compensation, which is the average monthly
compensation they received during their highest-paid 48 consecutive months of
service over the previous ten years, (2) their total credited service, and (3) a
multiplier, which changes depending on (a) whether or not the member is also
covered by Social Security or (b) qualifies for an “alternative retirement annuity”
(applicable to, e.g., pilots and state policemen). 40 ILCS 5/14-107, 14-108, 4-110
(West 2012). For members who do have Social Security and are not subject to the
alternative retirement annuity rules, the multiplier is 1.67% per year of credited
service. 40 ILCS 5/14-108(b) (West 2012). Accordingly, a member of SERS who is
eligible to retire, who has also paid into Social Security, and who has final average
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compensation of $1800 per month and 30 years of credited service will receive a
retirement annuity of $901.80 per month (30 x .0167 x $1800).
¶9 SERS members may earn a retirement annuity of up to 75% of their final
average compensation (40 ILCS 5/14-108(d) (West 2012)), although for members
covered by Social Security, it would take nearly 45 years of State service to do so.
These annuity payments are subject to 3% automatic annual increases beginning
after the member’s first full year of retirement, except that some members who
retire before 60 and do not meet the rule of 85 will not receive the increases until
they turn 60 and have been retired at least one full year. 40 ILCS 5/14-114(a) (West
2012). The annual annuity adjustments are built-in to the pension benefit and are
not tied to the cost of living. As a result, the real value of annuities may either
increase or erode depending on economic conditions, notwithstanding the
adjustments. 2
¶ 10 Funding to pay benefits under each of Illinois’ five State-funded systems is
derived from three basic sources: contributions by the State through appropriation
by the General Assembly; contributions by or on behalf of members based on their
salaries; and income, interest and dividends derived from retirement fund deposits
and investments. 40 ILCS 5/2-124 to 2-126, 14-131 to 14-133.1, 15-155 to
15-157.1, 16-152, 16-154, 16-158, 18-131 to 18-133.1 (West 2012). The
contributions to the systems by or on behalf of members of the systems have not
been problematic. There is no dispute that employees have paid their full share as
required by law at all times relevant to this litigation. That has not been the case
with respect to the contributions owed by the General Assembly.
¶ 11 For as long as there have been public pension systems in Illinois, there has been
tension between the government’s responsibility for funding those systems, on the
one hand, and the costs of supporting governmental programs and providing
governmental services, on the other. In the resulting political give and take, public
pensions have chronically suffered. As long ago as 1917, a report commissioned by
the General Assembly characterized the condition of State and municipal pension
systems as “one of insolvency” and “moving toward a crisis” because of financial
provisions which were “entirely inadequate for paying the stipulated pensions
2
By way of comparison, data published by the Social Security Administration show that Social
Security increases, which are tied to the cost of living, averaged 3.98%, nearly a percentage point
more than under the Illinois formula, between 1975 and 2014. http://www.ssa.gov/
OACT/COLA/colaseries.html.
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when due.” Report of the Illinois Pension Laws Commission 272 (1917). Similar
warnings were issued by the Illinois Public Employees Pension Laws Commission
in biennial reports it published between 1947 and 1969. See, e.g., Report of the
Illinois Public Employees Pension Laws Commission of 1949, 10 (1949) (revenues
allocated to pension funds have not kept pace with obligations and, with few
exceptions, “every fund in Illinois suffers at this time an actuarial insolvency”).
¶ 12 As the deficient contributions continued even during the post-WWII boom, the
Commission wondered: “[i]f the State of Illinois and local governments are today
resisting the full or substantial funding of pension obligations under present
conditions of economic prosperity, how much more unfavorable will be the
financial status of the funds when the obligations mature in greater proportions and
economic conditions may not be as promising?” Report of the Illinois Public
Employees Pension Laws Commission of 1957, 10 (1957). Still, nothing changed.
More than a decade later, as the citizens of our State were about to take up the
question of whether a new constitution should be adopted, the Illinois Public
Employee Pension Laws Commission continued to sound the same alarm, noting
that with respect to State-financed pension funds, appropriations “had been below
mandatory statutory requirements as expressly provided in the governing law” and
were “grossly insufficient.” Report of the Illinois Pension Laws Commission of
1969, 106 (1969). At the time the Commission made those statements, the GRS,
SERS, SURS, TRS and JRS systems had an overall funding rate of approximately
41.8%. Id. at 32, Table 2.
¶ 13 Concern over ongoing funding deficiencies and the attendant threat to the
security of retirees in public pension systems eventually led directly to adoption of
article XIII, section 5, the pension protection clause, when the new constitution was
adopted in 1970. Delegate Green, one of the provision’s sponsors, introduced it to
the Constitutional Convention by reminding his fellow delegates of the poor job
governmental entities had done in meeting their pension obligations over time. He
pointed out that:
“[i]n the past twenty-two years the unfunded accrued liabilities of these pension
plans in Illinois have increased from about $359,000,000 to almost
$2,500,000,000, and the unfunded accrued liabilities are real and are not
theoretical obligations based upon service already rendered.
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Despite the consistent warnings from the Pension Laws Commission, the
current budgeting of pension costs necessary to ensure the financial stability of
these funds, the General Assembly has failed to meet its commitments to
finance the pension obligations on a sound basis. In 1967 the General Assembly
approved Senate Bill 515 which provided for the appropriation to one state
university retirement system, to at least equal to an amount which would be
necessary to fund fully the current service costs and to cover the interest on the
past service; and despite this legislative mandate, the General Assembly
refused to appropriate the necessary funds. Now, during this two-year period
alone the appropriations under this system were $67,000,000 less than the
minimum required by the senate bill.
Now, what we are proposing is being carried out in some other states ***.
Our language is that language that is in the New York Constitution which was
adopted in 1938, really under a similar circumstance. In 1938 you were about at
the end of the Depression, but there was a great consideration on the part of the
New York General Assembly to really cut out some of the money that they
were giving to the pension programs in New York; and it was for this reason
that the New York Constitution adopted the language that we are suggesting.
Since that time, the state of New York—the pension funds for public employees
have been fully funded, and so I think we have good reason to believe that this
type of language will be a mandate to the General Assembly to do something
which they have not previously done in some twenty-two years.” 4 Record of
Proceedings, Sixth Illinois Constitutional Convention 2925 (statements of
Delegate Green) (hereinafter Record of Proceedings).
¶ 14 Delegate Green’s remarks were followed by statements from Delegate Kinney,
who noted in further support of the provision that the proposed creation of broad
home rule powers for municipalities had led to concerns that, unless they were
constrained, municipalities who preferred to use retirement money for other public
purposes such as street repair might abandon their pension obligations, leaving
police officers, firefighters and other civil servants unprotected. Id. at 2926
(statements of Delegate Kinney). Delegate Bottino, in turn, observed that:
“participants in these pension systems have been leery for years of the fact that
the—this matter of the amount the state has appropriated [for pensions] has
been made a political football, in a sense. In other words, in order to balance
budgets, you see, the party in power would just use the amount of the state
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contribution to help balance budgets, and this had gotten to the point where
many of the socalled pensioners under this system were very concerned; and I
think this is the reason that pressure is constantly being placed on the legislature
to at least put a fair amount of state resources into guaranteeing payment of
pensions.” Id. at 2930-31 (statements of Delegate Bottino).
¶ 15 The solution proposed by the drafters and ultimately approved by the people of
Illinois was to protect the benefits of membership in public pension systems not by
dictating specific funding levels, but by safeguarding the benefits themselves. As
we discussed in Kanerva v. Weems, 2014 IL 115811, ¶¶ 46-47, Delegate Green
explained that the pension protection clause does this in two ways: “[i]t first
mandates a contractual relationship between the employer and the employee; and
secondly, it mandates the General Assembly not to impair or diminish these rights.”
4 Record of Proceedings 2925 (statements of Delegate Green). Subsequent
comments by other delegates reaffirmed that the provision was designed to confer
contractual protection on the benefits of membership in public retirement systems
and afford beneficiaries, pensioners or their dependents “ ‘a basic protection
against abolishing their rights completely or changing the terms of their rights after
they have embarked upon the employment—to lessen them.” Kanerva v. Weems,
2014 IL 115811, ¶ 46 (quoting 4 Record of Proceedings 2929 (statements of
Delegate Kinney)).
¶ 16 The purpose of the clause and its dual features have never been in dispute. As
we noted in People ex rel. Sklodowski v. State, 182 Ill. 2d 220, 228-29 (1998), the
clause “served to eliminate any uncertainty as to whether state and local
governments were obligated to pay pension benefits to the employees,” and its
“plain language” not only “makes participation in a public pension plan an
enforceable contractual relationship,” but also “demands that the ‘benefits’ of that
relationship ‘shall not be diminished or impaired.’ ” The “politically sensitive area”
of how the benefits would be financed was a matter left to the other branches of
government to work out. Id. at 233. 3 That article XIII, section 5, created an
enforceable obligation on the State to pay the benefits and prohibited the benefits
from subsequently being reduced was and is unquestioned.
3
Consistent with an earlier opinion by this court in McNamee v. State, 173 Ill. 2d 433 (1996),
and comments at the Constitutional Convention, we did not, however, foreclose the possibility that a
direct action could be brought by pension system members to compel funding if a pension fund were
on the verge of default or imminent bankruptcy. Sklodowski, 182 Ill. 2d at 232-33.
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¶ 17 Despite Delegate Green’s hope that prohibiting the State from diminishing
retirement benefits would induce the General Assembly to meet its funding
obligations, as the legislature in New York State had done when the same pension
protection provision was adopted there, that did not occur. Until 1982, the State
funded its pensions using an approach which the United States Securities and
Exchange Commission (SEC) has characterized as bearing “no relation to actuarial
calculation.” In re State of Illinois, SEC Order Instituting Cease-and-Desist
Proceedings Pursuant to Section 8A of the Securities Act of 1933, Making
Findings, and Imposing Cease-and-Desist Order, Securities Act of 1933, Release
No. 9389, at 3, 2013 WL 873208 (Mar. 11, 2013) (hereinafter, SEC order). 4
¶ 18 In 1989, the General Assembly enacted a new funding plan to take effect in
1990, but it failed as well. In the years that followed, Dawn Clark Netsch, then
comptroller of the State, noted that the State failed to adhere to the new statutory
funding levels and exacerbated the problem by diverting funds earmarked for State
employee pensions into the General Revenue Fund. In testimony before the United
States Congress, which was investigating the use of public pension funds, she
stated:
“ ‘My concern is for the future health of our state retirement systems and for the
deferral of obligations to future generations. Underappropriated pension
contributions are like unpaid credit card bills. The liability does not go away
just because you choose not to pay the bill when it is due. You still owe the
unpaid balance, plus interest.[’]
‘Eventually, the cost of rectifying the problem becomes too great. Our
problems might be more understandable if our retirement systems provided
extravagant benefits, but they do not. We are having trouble facing our
obligations for systems that have some of the lowest benefit levels in the
country.’ ” Dawn Clark Netsch, State Pension Raids Rampant in the 1990s, Ill.
Mun. Rev. 15, 15 (Feb. 1993).
¶ 19 Starting in 1995, yet another funding plan was implemented by the General
Assembly. This one called for the legislature to contribute sufficient funds each
year to ensure that its contributions, along with the contributions by or on behalf of
members and other income, would meet the cost of maintaining and administering
4
The SEC order is a matter of which we may take judicial notice. See May Department Stores
Co. v. Teamsters Union Local No. 743, 64 Ill. 2d 153, 159 (1976).
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the respective retirement systems on a 90% funded basis in accordance with
actuarial recommendations by the end of the 2045 fiscal year. 40 ILCS 5/2-124,
14-131, 15-155, 16-158, 18-131 (West 2012). That plan, however, contained
inherent shortcomings which were aggravated by a phased-in “ramp period” and
decisions by the legislature to lower its contributions in 2006 and 2007. As a result,
the plan failed to control the State’s growing pension burden. To the contrary, the
SEC recently pointed out:
“the Statutory Funding Plan’s contribution schedule increased the unfunded
liability, underfunded the State’s pension obligations, and deferred pension
funding. The resulting underfunding of the pension systems (‘Structural
Underfunding”) enabled the State to shift the burden associated with its pension
costs to the future and, as a result, created significant financial stress and risks
for the State.” SEC order, at 3.
¶ 20 That the funding plan would operate in this way did not catch the State off
guard. In entering a cease-and-desist order against the State in connection with
misrepresentations made by the State with respect to bonds sold to help cover
pension expenses, the SEC noted that the State understood the adverse implications
of its strategy for the State-funded pension systems and for the financial health of
the State. Id. at 10. According to the SEC, the amount of the increase in the State’s
unfunded liability over the period between 1996 and 2010 was $57 billion. Id. at 4. 5
The SEC order found that “[t]he State’s insufficient contributions under the
Statutory Funding Plan were the primary driver of this increase, outweighing other
causal factors, such as market performance and changes in benefits.” (Emphasis
added.) Id. at 4.
¶ 21 By the end of June, 2013, the five State-funded retirement systems contained a
total of only 41.1% of the funding necessary to meet their accrued liabilities based
on the market value of fund assets. Commission of Government Forecasting &
Accountability, Illinois State Retirement Systems: Financial Condition as of June
30, 2013, 27 (Mar. 2014). The funding rate was thus nearly unchanged from the
41.8% funding rate prior to ratification of the 1970 Constitution and its pension
protection clause. By contrast, as of December 30, 2013, the Illinois Municipal
Retirement Fund (IMRF), another major public pension plan which operates in the
5
It appears from the record before us that the total unfunded liabilities for the five State-funded
retirement systems approached $100 billion by the time this litigation commenced. While the State
has pursued this appeal, it has no doubt grown larger.
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same market environment as the five State-funded systems, but which is managed
separately and not funded by the State, had an aggregate funding rate of 96.7%
based on the market value of its assets. Illinois Municipal Retirement Fund,
Comprehensive Annual Financial Report for the Years Ended December 31, 2013
and December 31, 2012, 8 (May 30, 2014). 6
¶ 22 As the continued deficiencies in the legislature’s pension funding efforts
became apparent to financial markets, federal regulators and the public, the State
was also experiencing significant difficulties in meeting its other obligations. To
address these budgetary pressures, the State implemented a variety of measures,
including delaying payments to creditors and vendors who do business with the
State, reducing or eliminating a variety of governmental programs, enacting a
temporary income tax increase (which was recently allowed to expire), and
significantly lowering benefits for anyone first contributing to State pension
systems after January 1, 2011 (the so-called Tier 2 plan for new hires, supra ¶ 5). 7
¶ 23 Following downgrades in the State’s credit rating and facing the prospect that
its credit rating would be reduced even further, the General Assembly engaged in
heated and protracted debate over possible legislative strategies for dealing with the
State’s fiscal problems through further changes to its pension obligations. After
numerous failed attempts to reach consensus, the General Assembly ultimately
enacted what became Public Act 98-599, the legislation challenged in this case.
¶ 24 Introduced as Senate Bill 1 and passed during the legislature’s fall, 2013, “veto
session,” Public Act 98-599 was described as an attempt to address the State’s large
debts and deficits, plummeting credit ratings, and imperiled discretionary spending
6
Several neighboring states also managed to achieve far higher funding rates than Illinois’
State-funded systems during a similar time frame. The “fair value” based funding ratio for the
Wisconsin Retirement System was 105.3%. Wisconsin Dept. of Employee Trust Funds,
Comprehensive Annual Financial Report for the Year Ended Dec. 31, 2013, 3 (Dec. 15, 2014). In
Iowa, the funded ratio was 82.7% as of June 30, 2013. Iowa Public Employees’ Retirement System,
An Annual Summary For the Fiscal Year Ended June 30, 2014, 7 (2014). The Indiana Public
Retirement System, which administers 8 separate “pre-funded” plans, reported an aggregate funded
percentage of 87.9%. Indiana Public Retirement System, 2014 Comprehensive Annual Financial
Report For the Fiscal Year Ended June 30, 2014, 11 (Dec. 17, 2014). The funded ratio for Missouri’s
various plans averaged 73.3%. Missouri State Employees’ Retirement System, Summary Annual
Financial Report Fiscal Year Ended June 30, 2014, 6 (Oct. 17, 2014).
7
It also attempted to reduce the health care premium subsidies it was required to pay for
annuitants, survivors and retired employees under the SERS, SURS and TRS systems. The
legislation authorizing that reduction was declared unconstitutional by this court in Kanerva v.
Weems, 2014 IL 115811, for the same reason Public Act 98-599 is being challenged here, namely,
that it violated the pension protection clause.
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programs “that are essential to the people of Illinois” and to help shore up the
long-term fiscal stability of both the State and its retirement systems. Pub. Act
98-599, § 1 (eff. June 1, 2014). The mechanism chosen under the Act to accomplish
those purposes was restructuring State-funded retirement systems. The law does
not pertain to all five of the State-funded retirement systems, however. As noted
earlier, JRS, the Judges Retirement System, was deliberately excluded. 8
¶ 25 Public Act 98-599 contains numerous provisions. Among these are a new
payment schedule to replace the one in effect since 1995 (40 ILCS 5/2-124, 14-131,
15-155, 16-158 (West Supp. 2013)); a mechanism authorizing pension boards to
initiate mandamus proceedings in our court if the State fails to make required
contributions to their respective systems (40 ILCS 5/2-125, 14-132, 15-156,
16-158.2 (West Supp. 2013)); and special directives with respect to certain
payments to the pension systems, when the payments are to be made and in what
amounts (30 ILCS 122/20, 25 (West Supp. 2013); 40 ILCS 5/2-125, 14-132,
15-156, 16-158.2 (West Supp. 2013)).
¶ 26 The Act provides a limited number of Tier 1 plan participants with the
opportunity, at a future date, to participate in a defined contribution plan. 40 ILCS
5/2-165, 14-155, 15-200, 16-205 (West Supp. 2013). It affords a nominal reduction
in the percentage of their salaries Tier 1 plan participants are required to contribute
toward the employee share of annuity costs. 40 ILCS 5/2-126, 14-133, 15-157,
16-152 (West Supp. 2013). Going forward, it bars persons hired by certain
nongovernmental organizations from participating in the public pension system (40
ILCS 5/7-109, 15-106, 16-106 (West Supp. 2013)) and prohibits new hires from
using accumulated sick or vacation time to boost their pension benefits (40 ILCS
5/7-116, 7-139, 9-219, 9-220, 14-104.3, 14-106, 15-112, 15-113.4, 16-121, 16-127,
17-134 (West Supp. 2013)). Public Act 98-599 also eliminates the duty of
employers to engage in collective bargaining or interest arbitration “over matters
affected by the changes, the impact of changes, and the implementation of
changes” made to the SERS, SURS and TRS systems by the new law. 5 ILCS
315/7.5 (West Supp. 2013).
8
The decision to exclude the JRS was unrelated to the economic health of that system, whose
funding percentage, 29.8%, is second worst among the five State-funded systems. Commission on
Government Forecasting and Accountability, Illinois State Retirement Systems: Financial
Condition as of June 30, 2013, 27 (Mar. 2014).
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¶ 27 The centerpiece of Public Act 98-599, however, is a comprehensive set of
provisions designed to reduce annuity benefits for members of GRS, SERS, SURS
and TRS entitled to Tier 1 benefits, i.e., members who belonged to those systems
prior to January 1, 2011. The new law utilizes five different mechanisms for
achieving this goal. First, it delays, by up to five years, when members under the
age of 46 are eligible to begin receiving their retirement annuities. 40 ILCS
5/2-119(a-1), 14-107(c), 14-110(a-5), 15-135(a-3), 16-132(b) (West Supp. 2013).
Second, with certain exceptions and qualifications, it caps the maximum salary that
may be considered when calculating the amount of a member’s retirement annuity.
40 ILCS 5/2-108, 2-108.1, 14-103.10(h), 15-111(c), 16-121 (West Supp. 2013).
Third, it jettisons the current provisions under which retirees receive flat 3% annual
increases to their annuities and replaces them with a system under which annual
annuity increases are determined according to a variable formula and are limited.
40 ILCS 5/2-119.1(a-1), 14-114(a-1), 14-115(d), 15-136(d-1), 16-133.1(a-1),
16-136.1(b-1) (West Supp. 2013). Fourth, it completely eliminates at least one and
up to five annual annuity increases depending on the age of the pension system
member at the time of the Act’s effective date. 40 ILCS 5/2-119.1(a-2),
14-114(a-2), 15-136(d-2), 16-133.1(a-2), 16-136.1(b-2) (West Supp. 2013).
Finally, with respect to the TRS and SURS systems, the Act also alters how the
base annuity amount is determined for purposes of what is known as the “money
purchase” formula, something available to members of those two systems who
began employment prior to July 1, 2005, as an alternative to the standard formula
for calculating pensions. See 40 ILCS 5/15-136, 16-133 (West Supp. 2013).
Because of this change, which involves use of a different interest rate, affected
members of TRS and SURS will have smaller base pensions.
¶ 28 Senate Bill 1, which became Public Act 98-599, was explained to the Senate
through presentation of a conference committee report by one of the bill’s chief
sponsors, Senator Kwame Raoul. Senator Raoul described the various provisions of
the bill as “all part of an integral bipartisan package” designed to reduce unfunded
liabilities in the pension systems which had resulted, principally, from “the State
not contributing what it should have” to those systems. 98th Ill. Gen. Assem.,
Senate Proceedings, Dec. 3, 2013, at 4 (statements of Senator Raoul). He noted
prior government reports which had found that “the reality is that the primary cause
of the State[’s unfunded] liability is Illinois’ decades-long failure to make its full
actuarial required employer contributions to the five pension systems.” Id. at 5. He
advised his colleagues that the bill would reduce the unfunded pension liability by
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$21.4 billion, and then summarized the specific provisions of the law that would
make that possible, including the critical benefit reductions described above. Id. at
5-7.
¶ 29 During discussion of the bill, Senator Hutchinson asked: “Am I correct that the
legislation intends to and will have a direct and substantial impact on the benefits of
current employees and retirees by reducing their benefits?” Id. at 40 (statements of
Senator Hutchinson).
Senator Raoul responded: “Yes. You are correct.” Id. at 40 (statements of
Senator Raoul).
¶ 30 This colloquy followed:
“SENATOR HUTCHINSON:
I know that one of the objectives of this legislation is really to improve
the State’s credit rating. Is that correct? I mean, that’s why we’re here.
***
SENATOR RAOUL:
It—it’s one of—one of—one of the State’s fiscal issues, yes, and
one—one of the objectives.
***
SENATOR HUTCHINSON:
So, then, is it fair to say that we are sacrificing a substantial amount of
people’s pension benefits to protect the State’s finances?
***
SENATOR RAOUL:
Yeah, I—you know, that’s a harsh characterization, but—but I—I
suppose yes.
***
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SENATOR HUTCHINSON:
The bill’s legislative statement states in the fourth paragraph that this ‘is
intended to address fiscal issues facing the State and its retirement systems
in a manner that’s feasible’. So, by using the word ‘feasible’, does that
mean that there are other feasible alternatives to this bill?
***
SENATOR RAOUL:
Certainly there are. I mean, certainly, you know, as has been mentioned,
a lot of these levers are—are levers that can be tweaked one way or the
other, and there are other proposals that were entertained by the conference
committee. But—but, you know, we’re trying to move from a stalemate.
So, yes, there are other alternatives, but, you know, this is an effort to move
from a—from a stalemate.
***
SENATOR HUTCHINSON:
Would another alternative be the proposal that the Center for Tax and
Budget Accountability outlined before the conference committee, which
would have re-amortized the current unfunded liabilities to a new gradual
[level] dollar payment schedule to achieve well over eighty percent by
2059?
***
SENATOR RAOUL:
Yes. *** So that—that and many other things could have been possible
alternatives.
***
SENATOR HUTCHINSON:
[The last sentence of the fourth paragraph of the report contains the
phrase] that the legislation is ‘minimizing the impact on current and retired
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State employees’. So by using ‘minimizing’, does that mean that the
legislation is somehow the least restrictive means available to us?
***
SENATOR RAOUL:
Yeah, I—you know,—I don’t know what the least restrictive means are.
I—I think what we’re doing just reflects what the political climate is.
Again, I’ve—I’ve—I’ve said, time and again, that we’ve been cemented in
a stalemate, and I, for my part, don’t want to see the State sink as a result of
that stalemate. So, it may not be the least restrictive means, but the political
climate, I believe, allows for us to—to—to take the step that we’re—we’re
hopefully now taking.” Id. at 41-46 (statements of Senators Hutchinson and
Raoul).
¶ 31 Following this exchange and remarks by Senator Hutchinson, the Senate’s
presiding officer recognized one final speaker, Senator Christine Radogno, another
of the bill’s sponsors. In urging passage of the legislation, Senator Radogno
characterized it as “the one opportunity that we have to finally, finally address the
most important economic issues that are facing this State, and that includes our
credit ratings, our financial position, our jobs climate, and, frankly, our reputation
in the global economy.” Id. at 48 (statements of Senator Radogno).
¶ 32 After being approved by both houses of the General Assembly, Senate Bill 1
was signed into law by then-Governor Quinn as Public Act 98-599 on December 5,
2013. Five separate lawsuits challenging the law were filed almost immediately.
These are Retired State Employees Ass’n Retirees v. Quinn, No. 2014 MR 1 (Cir.
Ct. Sangamon Co.) (hereinafter RSEA), Illinois State Employees Ass’n v. Board of
Trustees of State Employees Retirement System, No. 2014 CH 3 (Cir. Ct. Sangamon
Co.) (hereinafter ISEA), and Harrison v. Quinn, No. 2014 CH 48 (Cir. Ct.
Sangamon Co.) (hereinafter Harrison) all of which were filed in Sangamon
County; State Universities Annuitants Ass’n v. State Universities Retirement
System, No. 2014 MR 207 (Cir. Ct. Champaign Co.) (hereinafter SUAA), originally
filed in Champaign County; and Heaton v. Quinn, No. 13 CH 28406 (Cir. Ct. Cook
Co.) (hereinafter Heaton), originally filed in Cook County. In March of 2014, this
court entered an order pursuant to Supreme Court Rule 384 (Ill. S. Ct. R. 384)
transferring Heaton to Sangamon County and consolidating it with RSEA, ISEA
and Harrison. We subsequently entered a similar order with respect to SUAA.
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¶ 33 Plaintiffs in these five consolidated cases are individual members of the four
retirement systems affected by Public Act 98-599, both current employees and
retirees, as well as organizations representing such members and their interests
under Illinois pension law. 9 Defendants include the Governor, Treasurer and
Boards of Trustees of GRS, SERS, SURS and TRS. Judy Baar Topinka was also
made a nominal defendant in her capacity as Comptroller. The Attorney General
has noted in the record, however, that prior to her death in office, Comptroller
Topinka disavowed the Attorney General’s arguments in support of Public Act
98-599.
¶ 34 The complaints in all five consolidated actions focused their challenges on the
core provisions of Public Act 98-599 we have just described, namely, those which
would reduce the retirement annuities of individuals entitled to Tier 1 benefits by
raising the age at which members under the age of 46 are eligible to begin receiving
their retirement annuities, capping the maximum salary that may be considered
when calculating the amount of a member’s retirement annuity, abolishing the
existing fixed 3% annual annuity increases, eliminating at least one and up to five
annual annuity increases under the new formula, and altering how the base annuity
amount is determined for purposes of the “money purchase” formula.
¶ 35 Plaintiffs’ challenges to the new law were predicated on the Illinois
Constitution of 1970. In all five actions, plaintiffs’ principal contention was that the
reduction in retirement annuity benefits for Tier 1 employees was void and
unenforceable as a violation of the constitution’s pension protection clause (Ill.
Const. 1970, art. XIII, § 5). Four of the complaints (RSEA, ISEA, Harrison, and
SUAA) also alleged that the annuity reduction provisions violated article I, section
16, of the Illinois Constitution (Ill. Const. 1970, art. I, § 16), which provides,
inter alia, that no law impairing the obligation of contracts shall be passed. Two of
those four complaints (RSEA and ISEA) included separate impairment of contract
claims on behalf of a specific subset of employees who elected to participate in
early retirement programs offered by the State in 1991, 2002 and 2005. Violations
of article I, section 15, of the Illinois Constitution (Ill. Const. 1970, art. I, § 15),
which prohibits the taking or damaging of private property for public use without
just compensation, were alleged in Harrison and SUAA. In addition, RSEA and
ISEA asserted that the annuity reductions violated equal protection under article I,
9
Although the plaintiffs in RSEA, ISEA, Harrison and Heaton initially sought class
certification, they ultimately withdrew their class action allegations, and no questions regarding
class certification are at issue.
- 16 -
section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) because they did
not also include members of the JRS system, i.e., judges. 10
¶ 36 By its terms, Public Act 98-599 was scheduled to take effect June 1, 2014. On
plaintiffs’ motion, the circuit court entered a preliminary injunction on May 14,
2014, staying implementation of the law and enjoining defendants from enforcing
or administering any of its provisions pending further order of the court. That
injunction remained in effect throughout the circuit court proceedings.
¶ 37 The State answered plaintiffs’ complaints and raised as an affirmative defense
that because of “unanticipated exigencies contributing to the Systems’ unsound
financial condition and the State’s related fiscal crisis” and “[i]n light of the
measures already taken by the General Assembly to address the Systems’ financial
condition and the State’s fiscal crisis, and in light of the serious negative effects”
other alternatives would entail, the reduction in Tier 1 retirement annuities by the
General Assembly was justified as an exercise of the State’s “reserved sovereign
power,” i.e., its “police power.” More specifically, the State argued that plaintiffs’
claims under the Illinois Constitution should be rejected as a matter of law because
(1) through the State’s police power, the General Assembly possesses inherent
authority to override and modify obligations imposed on it by the Illinois
Constitution when, in its judgment, such action is reasonable and necessary to
advance an important public purpose; (2) because of the “dramatic squeeze on the
State’s finances” caused by the Great Recession, the strain on the State’s revenues
which would result from having to meet current pension obligations, the poor
condition of the State’s economy, and the continued deterioration of the State’s
credit rating, notwithstanding the State’s attempts to employ other remedial
measures, action was needed in the interest of the public good; and (3) the reduction
in retirement annuity benefits which would result from implementation of Public
Act 98-599 to these fiscal challenges is fair and reasonable under the
circumstances.
¶ 38 Plaintiffs in SUAA moved to strike the State’s “reserved sovereign power”
affirmative defense pursuant to section 2-615 of the Code of Civil Procedure (735
ILCS 5/2-615 (West 2012)). A similar, but separate motion was filed by the
plaintiffs in the other four cases. The plaintiffs in RSEA and ISEA moved for
summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735
10
There were other variations between the cases, but they are not germane to our resolution of
this appeal and require no further discussion.
- 17 -
ILCS 5/2-1005 (West 2012)) with respect to the claim that Public Act 98-599
violated equal protection under the Illinois Constitution. All plaintiffs filed a joint
motion for partial summary judgment addressed to their claims that the Act was
void and unenforceable under the pension protection clause. The State, in turn, filed
its own motion for summary judgment, arguing that its reserved sovereign powers
defense was fatal to all of plaintiffs’ claims.
¶ 39 Following a hearing, the circuit court granted the plaintiffs’ joint motion for
partial summary judgment on their claims that Public Act 98-599 was void and
unenforceable under the pension protection clause, allowed the various motions by
plaintiffs for judgment on the pleadings as to the State’s affirmative defense or to
strike that defense and denied the motion for summary judgment filed by the State.
The court specifically found that, on its face, the Act would diminish the benefits of
membership in the four affected State-funded retirement systems by reducing
retirement annuities in each of the five ways alleged by plaintiffs. The court further
concluded, based on existing case law, that the pension protection clause contains
nothing to support the contention that the legislature possessed implied or reserved
power to diminish or impair pensions. “[T]he State of Illinois made a
constitutionally protected promise to its employees concerning their pension
benefits,” the court ruled. “Under established and uncontroverted Illinois law, the
State of Illinois cannot break that promise.”
¶ 40 Because it believed that the constitutionally-infirm annuity reduction
provisions were an important part of the overall legislative package, the court
declared the Act to be unconstitutional in its entirety and permanently enjoined its
enforcement. In light of that result, the court concluded that there was no need to
address the other issues raised in the case, including plaintiffs’ challenges based on
other provisions of the Illinois Constitution.
¶ 41 The circuit court subsequently made the express written findings required by
Supreme Court Rule 18 (Ill. S. Ct. R. 18 (eff. Sept. 1, 2006)) where, as here, a
statute is declared unconstitutional. The State appealed. Because the circuit court’s
judgment invalidated a statute of the State of Illinois, the appeal was taken directly
to this Court. Ill. S. Ct. R. 302(a) (eff. Oct. 4, 2011).
- 18 -
¶ 42 ANALYSIS
¶ 43 Three issues are presented for our review: (1) does Public Act 98-599’s
reduction of retirement annuity benefits owed to members of the GRS, SERS,
SURS and TRS retirement systems violate the pension protection clause set forth in
article XIII, section 5, of the Illinois Constitution of 1970 (Ill. Const. 1970, art.
XIII, § 5); (2) if so, can the law’s reduction of those benefits nevertheless be upheld
as a proper exercise of the State’s police power; and (3) if not, are the invalid
provisions of Public Act 98-599 severable from the remainder of the statute? These
are all questions of law. 11 Our review is therefore de novo. Kanerva v. Weems,
2014 IL 115811, ¶ 33.
¶ 44 I
¶ 45 The first issue, whether Public Act 98-599’s reduction of retirement annuity
benefits violates this State’s pension protection clause, is easily resolved. The
pension protection clause clearly states: “[m]embership in any pension or
retirement system of the State *** shall be an enforceable contractual relationship,
the benefits of which shall not be diminished or impaired.” (Emphasis added.) Ill.
Const. 1970, art. XIII, § 5. This clause has been construed by our court on
numerous occasions, most recently in Kanerva v. Weems, 2014 IL 115811. We held
in that case that the clause means precisely what it says: “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.” Id. ¶ 38.
¶ 46 This construction of article XIII, section 5, was not a break from prior law. To
the contrary, it was a reaffirmation of principles articulated by this court and the
appellate court on numerous occasions since the 1970 Constitution took effect.
Under article XIII, section 5, members of pension plans subject to its provisions
have a legally enforceable right to receive the benefits they have been promised.
People ex rel. Sklodowski v. State, 182 Ill. 2d 220, 229-32 (1998); McNamee v.
State, 173 Ill. 2d 433, 444-46 (1996). The protections afforded to such benefits by
11
Severability presents a legal question because assessing whether invalid provisions of a
statute are severable from the remainder is a matter of statutory construction (People ex rel. Chicago
Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 534 (1990)), and statutory construction is a
question of law (Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010)).
- 19 -
article XIII, section 5 attach once an individual first embarks upon employment in a
position covered by a public retirement system, not when the employee ultimately
retires. See Di Falco v. Board of Trustees of the Firemen’s Pension Fund of the
Wood Dale Fire Protection District No. One, 122 Ill. 2d 22, 26 (1988).
Accordingly, 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. Buddell v. Board of Trustees, State University
Retirement System, 118 Ill. 2d 99, 105-06 (1987) (pension protection clause barred
statutory change in Pension Code which prevented current pension system member
from purchasing service credit for time spent in military); Felt v. Board of Trustees
of the Judges Retirement System, 107 Ill. 2d 158, 162-63 (1985) (amendment to
Pension Code adversely affecting base salary used to compute annuity
impermissibly reduced retirement benefits of existing retirement system members
in violation of pension protection clause); Kraus v. Board of Trustees of the Police
Pension Fund, 72 Ill. App. 3d 833, 844-48 (1979) (change in Pension Code’s
method of computing a police officer’s pensionable salary in a way that would
reduce the amount of the pension could not, under the pension protection clause, be
applied to persons who were members of the retirement system prior to the
amendment’s effective date); Miller v. Retirement Board of Policemen’s Annuity &
Benefit Fund, 329 Ill. App. 3d 589 (2001) (amendments to Pension Code which
reduced benefits of existing retirement system members with respect to eligibility
for automatic annual increases unconstitutional under pension protection clause);
Schroeder v. Morton Grove Police Pension Board, 219 Ill. App. 3d 697 (1991)
(finding invalid, as violation of pension protection clause, amendment to Pension
Code reducing pension benefits based on receipt of workers’ compensation
benefits). 12
12
Additional benefits may always be added, of course (see Kraus v. Board of Trustees of the
Police Pension Fund, 72 Ill. App. 3d at 849), and the State may require additional employee
contributions or other consideration in exchange (see Gualano v. City of Des Plaines, 139 Ill. App.
3d 456, 459 (1985). However, once the additional benefits are in place and the employee continues
to work, remains a member of a covered retirement system, and complies with any qualifications
imposed when the additional benefits were first offered, the additional benefits cannot be
unilaterally diminished or eliminated. See, e.g., Taft v. Board of Trustees of the Police Pension
Fund, 133 Ill. App. 3d 566, 572 (1985); Carr v. Board of Trustees of the Police Pension Fund, 158
Ill. App. 3d 7, 9-10 (1987); cf. Kuhlmann v. Board of Trustees of the Police Pension Fund, 106 Ill.
App. 3d 603, 609 (1982) (member not eligible for increase in benefits where he had ceased
contributing to the pension fund prior to the change in the law).
- 20 -
¶ 47 Retirement annuity benefits are unquestionably a “benefit of
contractually-enforceable relationship resulting from membership” in the four
State-funded retirement systems. Indeed, they are among the most important
benefits provided by those systems. If allowed to take effect, Public Act 98-599,
would clearly result in a diminishment of the retirement annuities to which Tier 1
members of GRS, SRS, SURS and TRS became entitled when they joined those
systems. As described earlier in this opinion, the new legislation directly reduces
the value of retirement annuities for those members in no fewer than five different
ways. While we presume statutes to be constitutional and must construe enactments
by the legislature so as to uphold their validity whenever it is reasonably proper to
do so (Wilson v. Department of Revenue, 169 Ill. 2d 306, 310 (1996)), there is
simply no way that the annuity reduction provisions in Public Act 98-599 can be
reconciled with the rights and protections established by the people of Illinois when
they ratified the Illinois Constitution of 1970 and its pension protection clause.
Those provisions contravene the clear requirements of article XIII, section 5, as set
forth in the provision’s plain and unambiguous language and construed by the
legion of cases we have just discussed. In enacting the provisions, the General
Assembly overstepped the scope of its legislative power. This court is therefore
obligated to declare those provisions invalid. Maddux v. Blagojevich, 233 Ill. 2d
508, 528 (2009).
¶ 48 In Fields v. Elected Officials’ Retirement Plan, 320 P.3d 1160, 1165-68 (Ariz.
2014), the Arizona Supreme Court recently reached the same conclusion in similar
circumstances based on the analogous provision of their state’s constitution. As
under our pension protection clause, the Arizona constitution provides that public
retirement system benefits “shall not be diminished or impaired.” Ariz. Const., art.
XXIX, § 1(C). Applying that provision, the Arizona Supreme Court held that
legislative changes to the statutory formula for pension benefit increases which
diminished benefit payments violated this constitutional provision, and the court
expressly rejected the argument that the term “benefit” in the constitutional
provision “only includes the right to receive payments in the amount determined by
the most recent calculation.” Fields, 320 P.3d at 1165-68. The court reasoned that
accepting such an argument would place even the base pension benefit outside the
reach of constitutional protection because the base benefit is produced by the same
statutory formula that includes benefit increases. See id. at 1166.
¶ 49 The “benefit” protected by the Arizona constitution’s Pension Clause, the court
explained, “necessarily includes the right to use the statutory formula” that
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determines the amount of pension annuity payments, and that formula includes the
statutory benefit increases. Id. The court held that the plaintiff, a retired Arizona
judge, “has a right in the existing formula by which his benefits are calculated as of
the time he began employment and any beneficial modifications made during the
course of his employment.” Id. Accordingly, the Arizona statutory benefit increase
formula was a protected pension “benefit” for purposes of the Arizona
constitution’s substantially identical pension protection clause. Id.
¶ 50 The Arizona Supreme Court added that its decision comported with judicial
decisions “in other states that have similar constitutional provisions protecting
public pension benefits,” including Illinois. Id. Significantly, the court observed
that Illinois courts have “determined that benefit calculation formulas are entitled
to constitutional protection,” and cited Miller, 329 Ill. App. 3d 589, for the
proposition that “benefit increases” are “constitutionally protected.” Fields, 320
P.3d at 1166.
¶ 51 II
¶ 52 That the annuity reduction provisions of Public Act 98-599 violate the pension
protection clause’s prohibition against the diminishment of the benefits of
membership in a State-funded retirement system is one the State has now all but
conceded. After this court reaffirmed in Kanerva v. Weems that the pension
protection clause means precisely what it says, the State shifted its focus to an
argument it did not raise and we did not consider in Kanerva. The State’s position
now rests on its affirmative defense that funding for the pension systems and State
finances in general have become so dire that the General Assembly is authorized,
even compelled, to invoke the State’s “reserved sovereign powers,” i.e., its police
powers, to override the rights and protections afforded by article XIII, section 5, of
the Illinois Constitution in the interests of the greater public good. This argument
must also fail.
¶ 53 The circumstances presented by this case are not unique. Economic conditions
are cyclical and expected, and fiscal difficulties have confronted the State before.
In the midst of previous downturns, the State or political subdivisions of the State
have attempted to reduce or eliminate expenditures protected by the Illinois
Constitution, as the General Assembly is attempting to do with Public Act 98-599.
- 22 -
Whenever those efforts have been challenged in court, we have clearly and
consistently found them to be improper.
¶ 54 During the Great Depression, for example, the city of Chicago omitted from its
annual appropriations for 1932, 1933 and 1934 a portion of the funds necessary to
pay the full salaries of the chief justice and 36 associate judges of the city’s
municipal court. The affected judges were subject to a provision of the Illinois
Constitution that prevented their compensation from being diminished during their
terms of office. Their salaries were also protected from reductions by a provision of
the Municipal Court Act then in effect. The judges sought relief by way of
mandamus to compel the city to comply with the law. People ex rel. Lyle v. City of
Chicago, 360 Ill. 25, 26-27 (1935).
¶ 55 For its defense, the city claimed that a large part of the taxes from 1929 to 1932,
inclusive, were not and could not be collected, and because of “the reassessment of
property in Cook county the levies and extensions of taxes were overdue from two
to three years.” Id. at 27. As a result, it faced a financial emergency which left it
unable to comply with the above-noted provisions without curtailing the essential
functions of government. According to the city, requiring it to pay the judges’ full
salaries as required by law would necessitate the cutting of other appropriations and
“crippl[e] activities for the prevention of crime, fire, and the spread of disease.” Id.
at 28-29.
¶ 56 In rejecting the city’s position, we acknowledged that legitimate efforts to
relieve the city’s difficulties were commendable. We held, however, that any
departure from the law is impermissible unless justification for that departure is
found within the law itself. Exigent circumstances are not enough. “Neither the
legislature nor any executive or judicial officer may disregard the provisions of the
constitution even in case of a great emergency.” Id. at 29. Because the provisions
prohibiting reduction in judicial salaries were plain and unequivocal and contained
nothing that expressly or impliedly authorized deviation from their terms, we
concluded that the city had no authority to change the judges’ salaries during the
terms for which they were elected. “Municipal authorities are charged by law with
making all appropriations for the expenses of the municipality,” we held, “and it
was manifestly their duty to make the necessary appropriations for the full amount
of the salaries of [these judges]. If appropriating such amounts will curtail other
funds and hamper some needed activity of the city, that situation is, of course,
unfortunate but does not justify the violation of the law.” Id. at 30.
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¶ 57 A similar situation was presented more recently in Jorgensen v. Blagojevich,
211 Ill. 2d 286 (2004), where the governor attempted to use his veto power to
eliminate a cost of living adjustment to salaries for the State’s judges as part of an
austerity plan. Because the adjustments were a vested component of the salaries
authorized by law, however, the governor’s attempt to undo them violated the
prohibition against diminishment of judicial salaries set forth in article VI, section
14, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 14). When the judges
challenged the governor’s actions on that basis in circuit court, they prevailed. On
direct review, we affirmed.
¶ 58 As we had in People ex rel. Lyle, nearly 70 years earlier, we acknowledged that:
“substantial budgetary challenges currently confront the Governor and the
General Assembly. The adverse economic conditions facing so many of our
fellow citizens have taken an inevitable toll on the state’s treasury. Revenues
are not keeping pace. Despite ongoing efforts by the Governor and legislature,
shortfalls persist. We do not mean to diminish the seriousness of the situation or
appear insensitive to the difficulties faced by our coordinate branches of
government. Those difficulties are undeniable, and we are highly cognizant of
the need for austerity and restraint in our spending. As administrators of the
judiciary, we make every effort to economize whenever and however we can.
One thing we cannot do, however, is ignore the Constitution of Illinois.”
Jorgensen, 211 Ill. 2d at 316.
Once the salaries were implemented according to law, article VI, section 14, of the
constitution precluded their diminishment and required that they be paid. “No
principle of law permits us to suspend constitutional requirements for economic
reasons,” we held, “no matter how compelling those reasons may seem.” Id. So it is
with the case before us today.
¶ 59 The State seeks to avoid this conclusion by arguing that because membership in
public retirement systems is an enforceable contractual relationship under article
XIII, section 5, it should be subject to the same limitations as all other contractual
rights; that under “a century and a half of federal and state law defining contractual
relationships,” these rights remain subject to modification—even invalidation—by
the General Assembly through the exercise of the State’s police power; and that the
reduction in retirement annuity benefits under Public Act 98-599 is a valid exercise
- 24 -
of police power because it is necessary and reasonable to secure the State’s fiscal
health and the well being of its citizens.
¶ 60 This argument was rejected by the circuit court. We reject it as well. As a
preliminary matter, the precedent on which the State relies does not involve the
pension protection clause under article XIII, section 5. It arises, instead, under
article I, section 16 (Ill. Const. 1970, art. I, § 16), and that provision’s counterpart
in the United States Constitution (see U.S. Const., art. I, § 10, cl. 1). Those
provisions, which are popularly referred to as the “contracts clause,” provide that
the State shall not pass any “law impairing the obligation of contracts.” The State
points out that case law interpreting these provisions has recognized that the
prohibition against impairment of contracts is not absolute and “does not immunize
contractual obligations from every conceivable kind of impairment or from the
effect of a reasonable exercise by the States of their police power.” George D.
Hardin, Inc. v. Village of Mount Prospect, 99 Ill. 2d 96, 103 (1983). The police
power is “incapable of alienation” (City of Chicago v. Chicago Union Traction Co.,
199 Ill. 259, 270 (1902)), the State observes, and it has long been recognized that it
may, in the exercise of its police powers, enact “regulations reasonably necessary
to secure the health, safety, morals or general welfare of the community, even
though contracts may thereby be affected” (City of Chicago v. Chicago & North
Western Ry. Co., 4 Ill. 2d 307, 317 (1954)).
¶ 61 While these principles sound expansive, legislation impairing contracts has
actually been upheld against contract clause challenges only rarely. George D.
Hardin, Inc. v. Village of Mount Prospect, 99 Ill. 2d at 104. When the legislation
has been directed at reducing pension benefits of State employees, this court has
expressly held that it is “not defensible as a reasonable exercise of the State’s police
powers” and declared it invalid under the contracts clause, as well as for other
reasons. Felt v. Board of Trustees of the Judges Retirement System, 107 Ill. 2d at
167; Bardens v. Board of Trustees of the Judges Retirement System, 22 Ill. 2d 56,
61-62 (1961).
¶ 62 This is not surprising. While impairment of a contract may survive scrutiny
under the contracts clause if reasonable and necessary to serve an important public
purpose, “ ‘[t]he severity of the impairment measures the height of the hurdle the
state legislation must clear.’ ” Felt v. Board of Trustees of the Judges Retirement
System, 107 Ill. 2d at 166 (quoting Allied Structural Steel Co. v. Spannaus, 438
- 25 -
U.S. 234, 245 (1978)). Changes in the factors used to compute public pension
benefits constitute an impairment which is “obviously substantial.” Id.
¶ 63 Moreover, the United States Supreme Court has held that particular scrutiny of
legislative action is warranted when, as here, a state seeks to impair a contract to
which it is itself a party and its interest in avoiding the contract or changing its
terms is financial. Committing to a contract does implicate the state’s sovereign
power, but:
“[w]hatever the propriety of a State’s binding itself to a future course of
conduct in other contexts, the power to enter into effective financial contracts
cannot be questioned. Any financial obligation could be regarded in theory as a
relinquishment of the State’s spending power, since money spent to repay debts
is not available for other purposes. Similarly, the taxing power may have to be
exercised if debts are to be repaid. Notwithstanding these effects, the Court has
regularly held that the States are bound by their debt contracts.” United States
Trust Co. of New York v. New Jersey, 431 U.S. 1, 24 (1977).
¶ 64 In addition, because the state’s self-interest is at stake whenever it seeks to
modify its own financial obligations, the United States Supreme Court has made
clear that it is not appropriate to give the state’s legislature the same deference it
would otherwise be afforded with regard to whether the impairment is reasonable
and necessary to serve an important public purpose. “A governmental entity can
always find a use for extra money,” the Court observed, “especially when taxes do
not have to be raised. If a State could reduce its financial obligations whenever it
wanted to spend the money for what it regarded as an important public purpose, the
Contract Clause would provide no protection at all.” Id. at 25-26.
¶ 65 In assessing claims by the state that impairment of a contract is “necessary” to
advance the public interest, courts consider whether the provisions which the state
seeks to change had effects which were unforeseen and unintended by the
legislature when initially adopted and whether the state could achieve its purposes
through less drastic measures. Id. at 30-32. In this case, the State seeks remand to
permit it to develop a more complete evidentiary record on these questions. Such a
remand, however, would serve no purpose. Based on the facts already of record and
the matters of which we can take judicial notice, it is manifest that the State could
not, as a matter of law, clear the threshold imposed under contemporary contract
clause jurisprudence.
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¶ 66 As this opinion has previously observed, our economy is and has always been
subject to fluctuations, sometimes very extreme fluctuations. Throughout the past
century, market forces have periodically placed significant pressures on public
pension systems. The repercussions of underfunding those pension systems in such
an environment have been well-documented and were well-known when the
General Assembly enacted the provisions of the Pension Code which Public Act
98-599 now seeks to change. The General Assembly had available to it all the
information it needed to estimate the long-term costs of those provisions, including
the costs of annual annuity increases, and the provisions have operated as
designed. 13 The General Assembly understood that the provisions would be
subject to the pension protection clause. In addition, the law was clear that the
promised benefits would therefore have to be paid, and that the responsibility for
providing the State’s share of the necessary funding fell squarely on the
legislature’s shoulders. Accordingly, the funding problems which developed were
entirely foreseeable. The General Assembly may find itself in crisis, but it is a crisis
which other public pension systems managed to avoid and, as reflected in the SEC
order, it is a crisis for which the General Assembly itself is largely responsible.
¶ 67 Moreover, no possible claim can be made that no less drastic measures were
available when balancing pension obligations with other State expenditures
became problematic. One alternative, identified at the hearing on Public Act
98-599, would have been to adopt a new schedule for amortizing the unfunded
liabilities. The General Assembly could also have sought additional tax revenue.
While it did pass a temporary income tax increase, it allowed the increased rate to
lapse to a lower rate even as pension funding was being debated and litigated.
¶ 68 That the State did not select the least drastic means of addressing its financial
difficulties is reinforced by the legislative history. As noted earlier in this opinion,
the chief sponsor of the legislation stated candidly that other alternatives were
available. Public Act 98-599 was in no sense a last resort. Rather, it was an
expedient to break a political stalemate.
¶ 69 The United States Supreme Court has made clear that the United States
Constitution “bar[s] Government from forcing some people alone to bear public
13
While the automatic annual increases have sometimes exceeded changes in the cost of living,
these adjustments are not cost of living adjustments, and as indicated earlier in this disposition, the
increases have actually lagged the average increases granted by the Social Security Administration,
which are tied to the cost of living.
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burdens which, in all fairness and justice, should be borne by the public as a whole
[citations].” (Internal quotation marks omitted.) United States v. Winstar Corp.,
518 U.S. 839, 883 (1996). Through Public Act 98-599, however, the General
Assembly addressed the financial challenges facing our State by doing just that. It
made no effort to distribute the burdens evenly among Illinoisans. It did not even
attempt to distribute the burdens evenly among those with whom it has contractual
relationships. Although it is undisputed that many vendors face delays in payment,
the terms of their contracts are unchanged, and under the State Prompt Payment
Act, vendors are actually entitled to additional compensation in the form of
statutory interest if their bills are not paid within specified periods. 30 ILCS
540/3-2 (West 2012). In no sense is this comparable to the situation confronted by
members of public retirement systems under Public Act 98-599, which, if allowed
to take effect, would actually negate substantive terms of their contractual
relationships and reduce the benefits due and payable to them in a real and absolute
way. Under all of these circumstances, it is clear that the State could prove no set of
circumstances that would satisfy the contracts clause. Its resort to the contracts
clause to support its police powers argument must therefore be rejected as a matter
of law.
¶ 70 The State’s police powers defense is fatally flawed for other reasons as well.
Just as the legislature is presumed to act with full knowledge of all prior legislation,
the drafters of a constitutional provision are presumed to know about existing laws
and constitutional provisions and to have drafted their provision accordingly.
Kanerva v. Weems, 2014 IL 115811, ¶ 41. The contracts clause had antecedents in
the very first Illinois Constitution and in the Constitution of the United States.
When the time came to address the protection for public pensions, the drafters of
the 1970 Constitution therefore presumably knew of the substantial body of case
law involving that clause, including the case law holding that, when warranted, the
protections afforded contracts could be modified through the exercise of the State’s
police powers. That, however, is not the standard they chose with respect to the
benefits of membership in public pension systems.
¶ 71 There are numerous instances in the Constitution of 1970 where the drafters
specifically provided that particular constitutional guarantees were to remain
subject to the authority of the State to step in when public safety and welfare
required. See Ill. Const. 1970, art. I, § 22 (right of individual citizens to keep and
bear arms shall not be infringed “[s]ubject only to the police power”); Ill. Const.
1970, art. I, § 9 (privilege of writ of habeas corpus shall not be suspended “except
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in cases of rebellion or invasion when the public safety may require it”); Ill. Const.
1970, art. I, § 3 (rights of religious freedom shall not be construed to “justify
practices inconsistent with the peace or safety of the State”); Ill. Const. 1970, art.
XI, § 2 (right to healthful environment “subject to reasonable limitation and
regulation as the General Assembly may provide by law”). When it came time to
address the rights conferred by membership in public pension systems, however,
the drafters included no similar reservation of authority.
¶ 72 This decision was not inadvertent. During the convention on the 1970 Illinois
Constitution, the suggestion was made that public pensions be addressed through
the same “impair[ment] [of] the obligation *** contracts” provision now included
in article I, section 16 (Ill. Const. 1970, art. I, § 16). 4 Record of Proceedings 2930
(statements of Delegate Whalen). That proposal, however, was rejected in favor of
the separate, more specific provisions of article XIII, section 5 (Ill. Const. 1970, art.
XIII, § 5). Those provisions not only created a new right of constitutional
dimension, conferring enforceable contractual status on the benefits of membership
in public retirements systems, they also defined the scope of the protection afforded
such benefits. Under the plain language of article XIII, section 5, not only may the
benefits not be impaired, they also may not be “diminished.” That is same term
used in article VI, section 14 (Ill. Const. 1970, art. VI, § 14), which protects the
salaries of judges against reduction during their terms of office and which was
enforced by this court in Jorgensen v. Blagojevich, 211 Ill. 2d 286 (2004),
discussed earlier in this opinion, notwithstanding the State’s claims of economic
hardship.
¶ 73 We note, moreover, that after the drafters of the 1970 Constitution initially
approved the pension protection clause, a proposal was submitted to Delegate
Green by the chairperson of the Illinois Public Employees Pension Laws
Commission, an organization established by the General Assembly to, inter alia,
offer recommendations regarding the impact of proposed pension legislation. See
Ill. Rev. Stat. 1969, ch. 108½, ¶¶ 22-801, 22-802, regarding the wording of the new
provision. The proposal criticized the language approved by the drafters on the
grounds that it would curtail the powers of the legislature and limit its authority. It
recommended that additional introductory language be added specifying that the
rights conferred thereunder were “[s]ubject to the authority of the General
Assembly to enact reasonable modifications in employee rates of contribution,
minimum service requirements and the provisions pertaining to the fiscal
soundness of the retirement systems.”
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¶ 74 Delegate Green subsequently advised the chairman that he would not offer it
because “he could get no additional delegate support for the proposed amendment.”
Report of the Illinois Public Pension Laws Commission 66 (1971). Shortly
thereafter, a member of the Pension Laws Commission sent a follow-up letter to
Delegate Green requesting that he read a statement into the convention record
expressing the view that the new provision should not be interpreted as reflecting
an intent to withdraw from the legislature “the authority to make reasonable
adjustments or modifications in respect to employee and employer rates of
contribution, qualifying service and benefit conditions, and other changes designed
to assure the financial stability of pension and retirement funds” and that “[i]f the
provision is interpreted to preclude any legislative changes which may in some
incidental way ‘diminish or impair’ pension benefits it would unnecessarily
interfere with a desirable measure of legislative discretion to adopt necessary
amendments occasioned by changing economic conditions or other sound reasons.”
Letter and Enclosed Statement of Rubin G. Cohn, Member of the Illinois Public
Employees Pension Laws Commission to Delegate Henry Green (Aug. 27, 1970),
Papers of Henry I. Green, Box 1, Folder 13 (University of Illinois Library at
Urbana-Champaign, Illinois History and Lincoln Collections). This effort also
proved unsuccessful. The statement was not read and no action was taken during
the convention to include language allowing a reasonable power of legislative
modification. Kraus v. Board of Trustees of the Police Pension Fund, 72 Ill. App.
3d at 851.
¶ 75 Given the history of article XIII, section 5, and the language that was ultimately
adopted, we therefore have no possible basis for interpreting the provision to mean
that its protections can be overridden if the General Assembly deems it appropriate
(see id.), as it sometimes can be under the contracts clause. To confer such authority
on the legislature through judicial fiat would require that we ignore the plain
language of the constitution and rewrite it to include “restrictions and limitations
that the drafters did not express and the citizens of Illinois did not approve.”
Kanerva v. Weems, 2014 IL 115811, ¶ 41. Indeed, accepting the State’s position
that reducing retirement benefits is justified by economic circumstances would
require that we allow the legislature to do the very thing the pension protection
clause was designed to prevent it from doing. Article XIII, section 5, would be
rendered a nullity.
¶ 76 The State protests that this conclusion is tantamount to holding that the State
has surrendered its sovereign authority, something it may not do. The State is
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incorrect. Article XIII, section 5, is in no sense a surrender of any attribute of
sovereignty. Rather, it is a statement by the people of Illinois, made in the clearest
possible terms, that the authority of the legislature does not include the power to
diminish or impair the benefits of membership in a public retirement system. This
is a restriction the people of Illinois had every right to impose.
¶ 77 Unlike Great Britain, where the sovereignty of the nation resides in Parliament,
“[u]nder our institutions this sovereignty or transcendent power of government
resides in or with the people.” Hawthorn v. People, 109 Ill. 302, 305-06 (1883). See
33A Ill. L. and Prac. State Government § 3 (2012). Sovereignty is lodged in the
people (People ex rel. Dickinson v. Board of Trade, 193 Ill. 577, 589 (1901)), and
the people are the sovereign power (Field v. People ex rel. McClernand, 3 Ill. 79,
110-11 (1839)). The people therefore possess all power originally, including all
legislative power. Harder’s Fire Proof Storage & Van Co. v. City of Chicago, 235
Ill. 58, 68 (1908).
¶ 78 As the ultimate sovereign, the people can, “within constitutional restrictions
imposed by the Federal constitution, delegate the powers of government to whom
and as they please. They can withhold or [e]ntrust it, with such limitations as they
choose.” Hawthorn v. People, 109 Ill. at 306; accord City of Eastlake v. Forest City
Enterprises, Inc., 426 U.S. 668, 672 (1976) (“all power derives from the people”
who can delegate it to representative instruments which they create or reserve to
themselves the power to deal directly with matters which might otherwise be
assigned to the legislature). 14 The powers they have reserved are shown in the
prohibitions set forth in their state constitutions. Munn v. Illinois, 94 U.S. 113, 124
(1876).
¶ 79 The people of Illinois give voice to their sovereign authority through the Illinois
Constitution. It is through the Illinois Constitution that the people have decreed
how their sovereign power may be exercised, by whom and under what conditions
or restrictions. Where rights have been conferred and limits on governmental action
have been defined by the people through the constitution, the legislature cannot
enact legislation in contravention of those rights and restrictions. Our court made
this clear in an opinion published 186 years ago in the very first volume of our
14
We note, moreover, that which reserved powers a state government may exercise is a question
for the people of that state (see U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 847-48 (1995)
(Thomas, J., dissenting, joined by Rehnquist, C.J., and O’Connor and Scalia, JJ.)), not the federal
courts (see Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 457 (1793)).
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official reports. As we explained then, the constitution “is the form of government
instituted by the people in their sovereign capacity, in which first principles and
fundamental law are established. [It] is the supreme, permanent and fixed will of
the people in their original, unlimited and sovereign capacity, and in it are
determined the condition, rights and duties of every individual of the community.”
Phoebe v. Jay, 1 Ill. 268, 271 (1828). “From the decrees of the constitution there
can be no appeal, for it emanates from the highest source of power, the sovereign
people. Whatever condition is assigned to any portion of the people by the
constitution, is irrevocably fixed ***.” Id.
¶ 80 These constraints apply to the legislature. While the constitution grants general
legislative authority to the General Assembly, the General Assembly must exercise
that authority in conformity with the constitution’s provisions. Neiberger v.
McCullough, 253 Ill. 312, 322 (1912). It cannot exceed the bounds imposed by the
constitution or, through legislative decree, seek to alter them, for the constitution
“can establish no tribunal with power to abolish that which gave and continues such
tribunal in existence.” Phoebe v. Jay, 1 Ill. 2d at 271. In contrast to a constitutional
mandate, a legislative act is but “the will of the legislature, in a derivative and
subordinate capacity. The constitution is their commission, and they must act within
the pale of their authority, and all their acts, contrary or in violation of the
constitutional charter, are void.” (Emphasis added.) Id.
¶ 81 In accordance with these principles, we have repeatedly held that the General
Assembly cannot enact legislation that conflicts with provisions of the constitution
unless the constitution specifically grants it such authority. O’Brien v. White, 219
Ill. 2d 86, 100 (2006); Thies v. State Board of Elections, 124 Ill. 2d 317, 325-26
(1988) (where constitution sets forth qualifications for office, legislature cannot
change or add to those qualifications unless the constitution gives it that power).
Police powers are no exception to this rule. Although the police powers of the
legislature are broad and far-reaching, our case law makes clear that their exercise
must not conflict with the constitution. City of Belleville v. St. Clair County
Turnpike Co., 234 Ill. 428, 437 (1908). If the constitution mandates that something
be done or not done, the legislature may not rely on its police powers to violate that
mandate (People v. Adams, 149 Ill. 2d 331, 339-40 (1992); People v. Warren, 11
Ill. 2d 420, 424 (1957)) or override express constitutional guarantees (see
Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 158-59
(1955)). See also Client Follow-Up Co. v. Hynes, 75 Ill. 2d 208, 215 (1979)
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(“limitations written into the Constitution are restrictions on legislative power and
are enforceable by the courts”).
¶ 82 Article XIII, section 5, of the Illinois Constitution (Ill. Const. 1970, art. XIII,
§ 5) expressly provides that the benefits of membership in a public retirement
system “shall not be diminished or impaired.” Through this provision, the people of
Illinois yielded none of their sovereign authority. They simply withheld an
important part of it from the legislature because they believed, based on historical
experience, that when it came to retirement benefits for public employees, the
legislature could not be trusted with more. As we discussed in Kanerva v. Weems,
2014 IL 115811, ¶ 45, and noted earlier in this opinion, delegates to the
constitutional convention were “mindful that in the past, appropriations to cover
state pension obligations had ‘been made a political football’ and ‘the party in
power would just use the amount of the state contribution to help balance budgets,’
jeopardizing the resources available to meet the State’s obligations to participants
in its pension systems in the future.” They understood that steps were necessary “in
order to protect ‘public employees who are beginning to lose faith in the ability of
the state and its political subdivisions to meet these benefit payments’ and to
address the ‘insecurity on the part of the public employees [which] is really
defeating the very purpose for which the retirement system was established ***.’ ”
Id. ¶ 46 (quoting 4 Record of Proceedings 2925 (statements of Delegate Green)).
And they wanted to make 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 ***.” (Internal quotation marks
omitted.) Id.
¶ 83 When Delegate Green presented article XIII, section 5, to the Convention, he
summed it up as follows:
“ ‘What we are trying to do is to mandate the General Assembly to do what they
have not done by statute. ***
Now, I think they either ought to live up to the laws that they pass or that
very quickly we ought to stop when we are hiring public employees by telling
them that they have any retirement rights in the state of Illinois. If we are going
to tell a policeman or a school teacher that, “Yes, if you will work for us for
your thirty years or until whenever you reach retirement age, that you will
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receive this,” if the state of Illinois and its municipalities are going to play
insurance company and live up to these contributions, then they ought to live by
their own rules. ***.’ [Citation.]” Id. ¶ 47.
¶ 84 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.
¶ 85 The General Assembly may not legislate on a subject withdrawn from its
authority by the constitution (see Hunt v. Rosenbaum Grain Corp., 355 Ill. 504, 509
(1934); City of Chicago v. County of Cook, 370 Ill. 301, 306 (1938)), and it cannot
rely on police powers to overcome this limitation. As we have already explained,
there simply is no police power to disregard the express provisions of the
constitution. It could not be otherwise, for if police powers could be invoked to
nullify express constitutional rights and protections whenever the legislature (or
other branches of government) felt that economic or other exigencies warranted, it
is not merely pension benefits of public employees that would be in jeopardy. No
rights or property would be safe from the State. Today it is nullification of the right
to retirement benefits. Tomorrow it could be renunciation of the duty to repay State
obligations. Eventually, investment capital could be seized. Under the State’s
reasoning, the only limit on the police power would be the scope of the emergency.
The legislature could do whatever it felt it needed to do under the circumstances.
And more than that, through its funding decisions, it could create the very
emergency conditions used to justify its suspension of the rights conferred and
protected by the constitution. If financial markets were rational, this prospect
would not buoy our economy, it would ruin it.
¶ 86 Adherence to constitutional requirements often requires significant sacrifice,
but our survival as a society depends on it. The United States Supreme Court made
the point powerfully nearly a century and a half ago when it struck down as
unconstitutional President Lincoln’s use of executive authority to suspend the writ
of habeas corpus during the Civil War, a period of emergency that, by any measure,
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eclipsed the one facing our General Assembly today. In rejecting the government’s
argument that wartime concerns justified the curtailment of the constitutional
protections, the Supreme Court employed language which seems appropriate to this
case:
“Time has proven the discernment of our ancestors; for even these
provisions, expressed in such plain English words, that it would seem the
ingenuity of man could not evade them, are now, after the lapse of more than
seventy years, sought to be avoided. Those great and good men foresaw that
troublous times would arise, when rulers and people would become restive
under restraint, and seek by sharp and decisive measures to accomplish ends
deemed just and proper; and that the principles of constitutional liberty would
be in peril, unless established by irrepealable law. The history of the world had
taught them that what was done in the past might be attempted in the future. The
Constitution *** is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times, and under
all circumstances. No doctrine, involving more pernicious consequences, was
ever invented by the wit of man than that any of its provisions can be suspended
during any of the great exigencies of government. Such a doctrine leads directly
to anarchy or despotism ***.” (Emphasis in original.) Ex parte Milligan, 71
U.S. 2, 120-21 (1866).
¶ 87 The financial challenges facing state and local governments in Illinois are well
known and significant. In ruling as we have today, we do not mean to minimize the
gravity of the State’s problems or the magnitude of the difficulty facing our elected
representatives. It is our obligation, however, just as it is theirs, to ensure that the
law is followed. That is true at all times. It is especially important in times of crisis
when, as this case demonstrates, even clear principles and long-standing precedent
are threatened. Crisis is not an excuse to abandon the rule of law. It is a summons to
defend it. How we respond is the measure of our commitment to the principles of
justice we are sworn to uphold.
¶ 88 More than two centuries ago, as adoption of the Constitution of the United
States was being considered by the citizens of our new nation, James Madison
wrote:
“If men were angels, no government would be necessary. *** In framing a
government which is to be administered by men over men, the great difficulty
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lies in this: you must first enable the government to control the governed; and in
the next place oblige it to control itself.” James Madison, Federalist No. 51
(1788).
¶ 89 Obliging the government to control itself is what we are called upon to do
today. The Constitution of Illinois and the precedent of our court admit of only one
conclusion: the annuity reduction provisions of Public Act 98-599 enacted by the
legislature and signed into law by the Governor violate article XIII, section 5’s
express prohibition against the diminishment of the benefits of membership in
public retirement systems. The circuit court was therefore entirely correct when it
declared those provisions void and unenforceable.
¶ 90 III
¶ 91 We come, then, to the third and final issue presented by this appeal: are the
invalid annuity reduction provisions of Public Act 98-599 severable from the
remainder of the statute? The issue of severability involves a question of statutory
construction, which primarily involves ascertaining and giving effect to the intent
of the legislature. In determining whether a statutory provision containing an
unconstitutional portion may be severed from the rest of a statute, we look first at
the statute’s own specific severability provision, if it has one. People v. Mosley,
2015 IL 115872, ¶ 29. Public Act 98-599 does.
¶ 92 The Act includes a provision dealing with the “severability and inseverability”
of the law’s numerous components. Set forth in section 97 of the statute, this
severability provision states that the various sections of the law are severable under
section 1.31 of the Statute on Statutes (5 ILCS 70/1.31 (West 2012)), with the
exception of certain specific sections. Under the Act, those particular sections, 39
of them in all, “are mutually dependent and inseverable from one another but are
severable from any other provision of this Act.” Pub. Act 98-599, § 97 (eff. June 1,
2014).
¶ 93 Among the 39 sections deemed “inseverable” are some of the specific
provisions which impermissibly reduce retirement annuity benefits in violation of
the pension protection clause. These include sections 2-119.1(a-1), 14-114(a-1),
15-136(d-1), and 16-133.1(a-1) (40 ILCS 5/2-119.1(a-1), 14-114(a-1),
15-136(d-1), 16-133.1(a-1) (West Supp. 2013)), which adversely affect the value of
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annual annuity increases. Under the express terms of section 97 of the Act itself, all
39 of the “inseverable” provisions must therefore fall with the provisions we have
declared unconstitutional. When one eliminates those 39 provisions along with all
the other annuity-reducing portions of the law that are void and enforceable under
the pension protection clause, Public Act 98-599 all but evaporates.
¶ 94 Severability principles would doom the statute in any case. Under Illinois law,
severability clauses are not conclusive. That is because a court’s authority to
eliminate invalid elements of an act and yet sustain its valid provisions derives not
from legislative fiat, but from powers inherent in the judiciary. The practice of
holding statutory provisions severable from those that are found to be invalid
originated in the courts long before severability clauses were adopted by
legislatures. Although the use of severability clauses has now become common
practice, we have noted that they are regarded as little more than a formality.
Cincinnati Insurance Co. v. Chapman, 181 Ill. 2d 65, 81 (1998).
¶ 95 Even when a statute contains an express severability clause, the clause is
merely viewed as reflecting a rebuttable presumption of legislative intent. Best v.
Taylor Machine Works, 179 Ill. 2d 367, 460 (1997). The presumption of
severability reflected in an express severability clause will be overcome, and the
entire statute will be held unconstitutional, if the legislature would not have passed
the law without the provisions deemed invalid. To determine whether the
legislature would not have passed the law without the invalid parts, the courts
consider whether the legislative purpose in passing the act is significantly undercut
or altered by the elimination of those invalid sections. Even in cases where the valid
sections of an act are complete and capable of being executed, the entire act will be
declared void if, after striking the invalid provisions, the part that remains does not
reflect the legislature’s purpose in enacting the law. Id. at 461-62.
¶ 96 Applying these principles to the case before us, there can be no serious question
that, with invalidation of those provisions of Public Act 98-599 which reduce the
retirement annuities Tier 1 members of the GRS, SERS, SURS and TRS are
entitled to receive, the entire statute must fall. As noted earlier in this opinion, the
legislation’s proponents described its numerous provisions as “all part of an
integral bipartisan package.” The overarching purpose of the law was to shore up
State finances, improve its credit rating and free up resources for other purposes by
reducing, i.e., diminishing, the amount of retirement annuity benefits paid to Tier 1
members of GRS, SERS, SURS, and TRS, particularly annual annuity increases,
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which the speaker of the House of Representatives himself referred to as the chief
cause of the financial problems the Act was intended to address. 98th Ill. Gen.
Assem., House Proceedings, Dec. 3, 2013, at 7 (statements of Representative
Madigan). The annuity reduction provisions are therefore not merely central to the
statute, they are its very reason for being. Without them, the legislature would not
have enacted the law at all. To leave those remaining provisions standing once the
core sections are stripped away would, under these circumstances, yield a
legislation package that no longer reflects the legislature’s intent. The circuit court
was therefore correct when it concluded that Public Act 98-599 is void and
unenforceable in its entirety. 15
¶ 97 CONCLUSION
¶ 98 For the foregoing reasons, the judgment of the circuit court declaring Public
Act 98-599 to be unconstitutional and permanently enjoining its enforcement is
affirmed.
¶ 99 Affirmed.
15
The legislature is, of course, free to reenact any provisions of Public Act 98-599 that do not
violate the constitution. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 250 (2010).
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