December 7, 2013 By: Mark Glennon
All core parts of the pension bill recently passed are suspect under the Illinois Constitution, which says pensions cannot be “diminished or impaired,” and the bill will now go to Illinois courts for review.
Illinois judges, like judges everywhere, are supposed to avoid conflicts of interest and the appearance thereof. Disqualification of a judge is mandatory under the Illinois Code of Judicial Conduct if a judge or the judge’s spouse, parent or child “has an economic interest in the subject matter in controversy or has any other more than de minimis interest that could be substantially affected by the proceeding.” Pensions for judges are the most bloated in the state system. The average Illinois judge retiring today after 30 years of service receives over $145,000 for the rest of his life.
If you think Illinois judges will be biased, you’re right. If you think that means they can’t hear the pension case, forget it.
First, the pension bill excludes the judges’ pension plan to justify letting them rule. Maybe that’s technically good enough as a strict legal matter, but in fact it’s a sham. While judges won’t be ruling directly on their pension, their ruling will impact the state’s financial ability to honor their own pension. More importantly, their ruling will create precedent that should, almost certainly, apply to later efforts to reform other pensions including the their own. Chicago and hundreds of other cities and municipalities with underwater pensions not covered by the bill are anxiously awaiting a ruling on the new bill precisely because they want to know what precedent is set, even though the facts and law pertinent to them will be somewhat different.
One legal theory likely to be tested on the new bill is that the constitutional ban on pension cutting is trumped by necessity — that the core duty of the state to protect the health and safety of its citizens is impaired by the cost of pensions. If that theory is upheld, should the precedent apply to the judicial pension? Probably so. Granted, judges are also protected by a separate constitutional provision intended to protect them from vindictive cuts in their compensation if the legislature doesn’t like their rulings, but certainly that should not bar any reforms to the judicial pension if core state functions are found to be failing.
Second, there’s something in the case law called the “rule of necessity” that says conflicts of interest should be overlooked if there’s no other judge or forum with proper jurisdiction to hear the case. If there’s some clever way to find unbiased judges to hear the case, it’s not apparent.
Putting this into context means, for example that Supreme Court Justice Anne Burke will likely end up hearing the case. She’s the wife of Cook County Democrat Eddie Burke, the longest serving alderman in Chicago history. Chicago aldermen get particularly fat pensions for their part time work, as described in this Tribune piece. Reform of his pension, too, probably will be guided later by the precedent the initial case sets. Who knows how many other judges in the trial and appellate courts through which this case will run have similar relationships, Illinois being what it is.
Excluding judges from pension reform should perhaps even be challenged as an “equal protection” violation. Disparate treatment like this requires at least a “rational basis” to be constitutionally sound, and even that seems lacking here.
Third, the lawyers representing the state will all be in the pension system — members of the Attorney General’s office, including Lisa Madigan herself.
Finally, there’s the matter of campaign contributions to judges. Supreme Court Justice Thomas Kilbride is the most egregious example, having collected more from union PACs over the last ten years than all but four Illinois politicians, even more than Mike Madigan and John Cullerton. Illinois legitimized that system long ago.
This mess is just part of the rats’ nest of conflicts of interest inherent and unavoidable in a system where the government runs a retirement system. It’s bad enough that the pension bill was negotiated and passed by pensioners.
A lobbyist told me the line around Springfield last week was that at a few legislators and their staff lawyers “spent Thanksgiving weekend drafting 320 pages to cut their own pension. Do you think maybe we’ll discover some problems in it?”
So, now, the judicial system will be disgraced, too. The Code of Judicial Conduct begins with the following:
Our legal system is based on the principle that an
independent, fair and competent judiciary will interpret and
apply the laws that govern us.
Forget that for pensions.