11746064545_4e2d19511c_z(1)In their reply brief in the Public Pension Reform Act appeal, the State immediately zeroes in on what it perceives as the central difficulty of the plaintiffs’ position: the trial court’s conclusion that the Pension Protection Clause had no exceptions at all. Plaintiffs’ “super-contract approach,” the State writes, “would deny the State the ability to protect the public health, safety, and welfare if doing so required even a penny’s reduction in pension benefits.”

The pension clause provides as follows:

Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.

According to the State, the plaintiffs’ position results in a Clause at war with itself – the very nature of a “contractual relationship” – at least, a contract with the State – is irreconcilable with a relationship “the benefits of which shall not be diminished or impaired.” According to the State, the plaintiffs’ position “negates the plain meaning of ‘contractual relationship’ and results in an internally inconsistent Pension Clause.”

The State offers no explanation, however, of how the “diminished or impaired” language adds additional meaning to the “contractual relationship” part of the clause. Nor does the State attempt to reconcile its argument with the position it took in its opening brief: that the two halves of the Clause were entirely consistent because it was the benefits of the contractual relationship which could not be diminished or impaired – and sovereign entities always have the right to unilaterally modify their contracts.

The plaintiffs argue that the words “diminished” and “impaired” must mean different things – otherwise, one of the two words is surplusage. But no problem, the State claims; the “canon against constitutional surplusage provides only that “the presence of surplusage . . . is not to be presumed in . . . constitutional construction’ and ‘each word, clause or sentence must, if possible, be given some reasonable meaning.’” (Emphasis in the original.) Since in the State’s view it is impossible to ascribe differing meanings to the two words, it is permissible to consider the phrase redundant, like “cease or desist.”

The State claims that the Constitutional Convention debates support its interpretation (see here, here and here for our take on the debates). The State argues that the delegates’ supposed “focus” on merely establishing a distinction between treating pensions as contractual rights and as gratuities “undermine[d] Plaintiffs’ reliance on various delegates’ statements” about the meaning of the Clause. Although the State does not quote either Sponsor Kinney’s statement, (“If a police officer accepted employment under a provision where he was entitled to retire at two-thirds of his salary after thirty years of service, that could not subsequently be changed to say he was entitled to only one-third of his salary after thirty years of service, or perhaps entitled to nothing”), or Sponsor Green’s statement, (“you say when you employ these people, ‘now, if you do this, when you reach sixty-five, you will receive $287 a month,’ that is, in fact, what you will get”), the State insists that “it would not even have occurred to the delegates” that their comments could be construed as absolutely barring reductions in benefits.

The State next turns to the case law relating to the Pension Protection Clause. According to the State, the Supreme Court could not have concluded that “the Pension Clause is absolute” in Felt v. Board of Trustees of Judges’ Retirement System, since if it had, the Court would have held that the Pension Protection Clause “is unconstitutional.” Nor did the Arizona Supreme Court’s decision in Fields v. Elected Officials Retirement Plan, in which the Court held that the Arizona Constitution’s Pension Protection Clause absolutely barred reductions in pension benefits, support the plaintiffs’ argument, since the Arizona Constitution’s clause provided that pension benefits are a “contractual relationship” subject to the constitution’s Contract Clause “and” benefits “shall not be diminished or impaired.” According to the State, the Arizona framers’ decision to provide in an independent clause that benefits may not be diminished or impaired is sufficient grounds for giving that clause independent meaning.

The State next turns to its argument that if the Pension Protection Clause absolutely bars any reduction in benefits, it violates the Federal constitution. The plaintiffs argued that the reserved powers doctrine does not extend to the State unilaterally modifying its economic commitments, but the State disagrees. “’Ensuring the financial integrity of the [government] is a significant public purpose,’” according to the State.

The State concludes by challenging the plaintiffs’ argument that the Pension Reform Act is not severable. The State relies upon the Act’s “explicit and carefully drawn severability provision,” dismissing the plaintiffs’ argument as being reliant on “a comment by a single Senator.”

The oral argument in In re: Pension Reform Litigation will be held at 2:30 p.m. on Wednesday, March 11, 2015. We’ll be back before the argument over at Illinois Supreme Court Review with a preview, focusing on the Court’s history over the past fifteen years with comparable cases.

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