Listening to justices’ questions — and silence — in pension case

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Illinois Supreme Court Justice Bob Thomas, former placekicker for the Chicago Bears, seemed more than ready Wednesday to tee up the state’s new pension law and boot it into oblivion.

Other than that, I’m not sure how anybody could have received much of a read on how the high court will rule on the challenge to the law that was intended to fix the state’s deepening pension problems.

The four Democratic members of the court, who form a controlling majority, said not one word during the 50-minute oral argument. Not a peep, which isn’t necessarily a sign of anything either. Maybe the cat had their tongues.


Only the three Republican justices — Thomas, Lloyd Karmeier and Chief Justice Rita Garman — asked any questions of the lawyers, and only Thomas made his inquiries pointed enough to suggest a strong point of view about the case.

Just the same, appellate lawyers always warn that you can get fooled by making assumptions based on the questions Supreme Court justices ask.

Still, I have to say I didn’t come away with any great sense of optimism that the law will be upheld and the state can start to put its financial house back in order, as I have long hoped to the consternation of my public employee readers.

Even if the justices reject the arguments from lawyers for state employees and teachers that their pension benefits are off limits under the Illinois Constitution, the case would still have to go back to a circuit court judge for a trial on whether an actual emergency exists that would justify the state using its “police powers” to cut pensions.

In a signal of how important the case is, not only to the state but to all Illinois municipalities, Chicago Corporation Counsel Stephen Patton sat front and center in the Supreme Court chambers.

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Chicago has passed its own pension-reform legislation, which city lawyers argue should stand on its own regardless of the state’s pension case.  I have a hard time understanding how it could if the Supreme Court holds firm to what Gino DiVito, a former state appellate justice representing the public employees, referred to as the “explicit, clear and unambiguous language” of the state’s pension clause.

That clause, as many a public employee can recite in their sleep and as many an elected official can see in their nightmares, holds that membership in an Illinois public pension fund “shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

Arguments have gone back and forth for years now about whether that protection is as absolute as it seems, and all that’s left is to hear what the state’s highest court has to say.

State solicitor general Carolyn Shapiro tried to focus the justices on the words “contractual relationship.”

“Like all contracts, they can be altered,” she argued.

But Thomas, for one, didn’t seem to be buying it.

“If the court holds that the state can invoke its police powers to violate core constitutional guarantees to respond to an emergency that at least arguably the state itself created, then aren’t we giving the state the power to modify its contractual obligations whenever it wants? For instance, the state could simply fail to fund the pension systems and then claim an emergency, correct?” Thomas asked Shapiro.

Thomas returned to that point several times, and while Shapiro denied that to be the case, I have to admit the question has always nagged at me.

All that really matters, though, is what those four silent Democrats — Anne Burke, Charles Freeman, Thomas Kilbride and Mary Jane Theis — were thinking.

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