Pensions
8:27 am
Sat May 25, 2013

Is There Justice In Leaving Judges' Pensions Unscathed?

Illinois lawmakers remain at odds over how to handle the state's $100 billion of pension debt.  But there's a chance that this spring the General Assembly may finally do something about it.  After years of no major action, there are not one, but two major packages designed to reign in Illinois' retirement costs.  The House and Senate passed competing plans.  Both of them seek to save Illinois money by cutting current and retired government workers' benefits.  But one important group of government workers are being left out of both deals - judges.

Credit Illinois Supreme Court

There's a lot of angst, uproar and fussing at the capitol over what's happening with the state's pension systems.

What legislators do about it will have ramifications for the Illinois budget, as well as for state employees' and teachers' pocketbooks - not to mention politicians' own political and financial futures.

But it won't affect judges' wallets.  Their retirement benefits would be left untouched.  Republican Representative Dan Brady of Bloomington says it's unfair - and he won't go along with it.

BRADY: "A teachers' just as important as a judge.  And that should be across the board. I cannot believe that we're aren't going to make some changes to over 2,039 judges across the state of Illinois, over 1,059 who are retirees, and not ask them to ante up anything?"

That may well be what happens.

But even if lawmakers finally come to an agreement and pass a pension overhaul ... there's a chance that in a year or two, lawmakers could be sent back to square one.  The state constitution guarantees public pension benefits "shall not be impaired." So it's widely expected that any change to the pension plans would end up in court.

MADIGAN: "Judges were excluded as a practical decision."

When presenting his pension package to the Illinois House, Speaker Mike Madigan indicated that's why his plan leaves judges' pensions untouched:

MADIGAN: "The absence of the judicial pension system in the bill, will, let's say, relieve them of the burden of dealing with a conflict of interest."

The Speaker sounds confident it'll work.

MADIGAN: "I think that there will be at least four members of the Illinois Supreme Court that will approve the bill."

Remarks he quickly retreated from when pressed.

MADIGAN: "It's just my judgment.  REPORTER: "Have you been in contact with them?"  MADIGAN: "No.  Absolutely not.  And I don't plan to.  Be very clear about that.  I've had no conversations with any member of the court.  Concerning anything."

After all - it wouldn't be proper for a key lawmaker to try to exert influence over the judiciary.

But critics argue Madigan already has.

He's not only Speaker of the House -- he's also head of the Democratic Party of Illinois. In 2010, the Party was the top contributor in Supreme Court's Chief Justice Thomas Kilbride’s heated campaign to keep his seat. The Democratic Party gave Kilbride nearly $1.5 million.

NOWLAN: "Clearly the Speaker would not be involved in such races unless he felt there were consequences from the court (on matters such as partisan redistricting of the legislature and congressional districts, for example."

That's Jim Nowlan, a former legislator, a retired University of Illinois political professor, and a member of Illinois' executive ethics commission.

NOWLAN: "I think that the court has been perceived throughout history as a political court.  The judges are elected on partisan ballots..."

That is a common perception, says Dennis Rendleman, but not one that's necessarily borne out by the evidence.  Rendleman is a member of the Illinois Judicial Ethics Committee .

Yes, he says as judicial campaigns have gotten more intense, and attracted more money -- people have become skeptical of judges' ability to stay impartial.

And yet ...

RENDLEMAN: "Maybe I'm ... I don't think I'm totally naive about the political of Illinois ... but the dynamic is different."

Supreme Court justices in Illinois only run for election once.  After that they stay on the bench, unless voters take a once in a decade chance to kick them off.  Rendleman that means judges don't carry the same sense of indebtedness to their donors as do legislators -- who are constantly running for re-election.

 RENDLEMAN: "It's not like the General Assembly where you can say that, you owe me on this issue, or you owe me on everything."

And, he says, it's not as if there's any way to get around the deeper, intrinsic conflict-of-interest issue that would arise if the Judicial Retirement System were to be included in a pension overhaul ... that judges, themselves, receive state pensions.

RENDLEMAN: "There is a doctrine in judicial ethics called the Rule of Necessity."

This rule, Rendleman says, is invoked when there's no other court that could resolve the issue.

RENDLEMAN: "You can't take a question of the Illinois law, and then send it to Indiana to be resolved, just because the Illinois justices might have an interest in that law."

It came into play during a case decided by the Illinois Supreme Court in 2004.  That's when Illinois' budget troubles were beginning.  In that case, Illinois judges were the plaintiffs ... suing the state for trying to strip them of their automatic cost-of-living pay increases.  Justices on the state Supreme Court ruled, well, in their own favor.  They got to keep their pay hikes.

They cited another clause in the state Constitution -- a clause that could also come into play if there were an attempt to reduce judicial pensions.  The constitution specifically says a judge's compensation cannot be diminished during his or her term.  It's meant to keep the third branch of government independent, so lawmakers can't punish judges for unpopular rulings.

That's what Governor Pat Quinn seems to be alluding to when he justifies leaving judges out what he has otherwise demanded be "comprehensive pension reform."

QUINN: "There are some constitutional principles that are in the Illinois constitution, that, uh, make that, uh more difficult.  The judges have a little different status. There's been a supreme court case that already addressed that matter."

Retirement benefits, after all, could be considered compensation.

Bear in mind - there are far fewer judges in Illinois than there are, say, teachers. So Illinois will get far greater savings by cutting teachers' pensions than by cutting judges'.

Still - critics are quick to point out that Illinois judges are among the highest paid in the nation.  And their pension benefits are particularly generous.

The association representing Illinois’' current and retired judges declined comment. 

But Judge Ed Petka was willing to offer his perspective. Petka was on the Will County Circuit Court for a few years before he got cancer and suffered heart problems, forcing him to step down.  So now, he's drawing a pension.

PETKA: "I haven't calculated to the penny, but it's somewhere around $190,000."

Petka doesn't apologize for it.  He says he'd love to still be working as a judge.  He didn't do anything nefarious to get his pension -- it's the law.  Even though he was only on the bench for a relatively short time, Illinois law lets judges combine their years of service with those spent in other government jobs. In Petka's case, he was a state legislator.

He was in that job when Governor Rod Blagojevich and the General Assembly voted to - as he puts it - repeatedly raid the state's pension funds.

PETKA:  "The numbers that were given were way off base, I said so at the time, and many of us who voted 'no' on the raids turned out to be correct."

Illinois' pension funds are in trouble for a lot of reasons.  But that's a big one.

Petka's no longer in a position to decide what Illinois should do about the pension mess it's gotten itself into.

PETKA: "Thank God I no longer have to worry about those types of things ... no matter what they do it is going to be a very, very difficult sell."

A sell Senate President John Cullerton and House Speaker Mike Madigan - who are both attorneys, by the way - are trying to make easier for the court to buy by leaving judges out of it.

But there's still one more legal argument to consider.  Here's Judge Petka:

PETKA: "From my - perspective - and very candidly I haven't given this an enormous amount of thought ... but I would think that ... having four out of the five pension systems in the state being included and one being excluded, from the operation of a pension bill, may lead to a problem that has not been discussed that I'm aware of ... and that's the equal protection of the laws."

In other words - all people similarly situated - whether they're a retired teacher, state worker, university employee, legislator, or if they're a retired judge - are to be treated the same way in the eyes of the law.