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U of I Legal Scholars Weigh in on Constitutionality of Pension Law

High Court may strike down part or all of law, but two law professors see that as an uphill battle.
CHAMPAIGN -- In reaction to the passage of the pension reform law, the University of Illinois interviewed two Constitutional scholars about whether the law will survive a court challenge.  It should be noted that both are state employees and presumably impacted by the pension law.  That said, their interpretation suggests that the public employee unions are going to have a difficult time getting the new law overturned.

Professors of law John Columbo and Laurie Reynolds were first asked the big question -- is the new law constitutional?  "I continue to believe that if the Illinois Supreme Court interprets the pension clause in the state constitution literally, at least parts of the law will be struck down," Columbo says.  "It's very hard to see how a reduction in the annual cost-of-living adjustment (COLA) for people already retired is supported by any contractual consideration. One of the arguments I've heard is that the 1 percent reduction in contributions will constitute legal consideration for the COLA change, but retirees have no payments to reduce, so clearly with respect to them there is no consideration."

Reynolds adds, "No constitutional provision is absolute ... I believe that the meaning of the pension clause is going to be that no benefit shall be diminished unless the state has clearly established that diminishment is the only way to keep the state afloat and to allow the state to continue to perform its other important duties to the citizens of Illinois.  If the opponents of the law can show the Illinois Supreme Court that the state is bluffing here, that there are actually reasonable alternative strategies that would fully fund the system and that would allow the state to continue to fund its other obligations, then the court is likely to say that this law is an unconstitutional diminishment."

That seems unlikely.  Not only has the state's pension liability skyrocketed, but it has forced deep cuts in other programs such as education and continues to eat a bigger and bigger piece of the state budget.

Reynolds also points to a past case which may have an impact on the State Supreme Court's posture in a lawsuit.  She says, " that the state courts once had an opportunity to order the state to fund the pension system and chose not to jump into that essentially legislative decision. In the Sklodowski case in 1998, the (state supreme) court rejected a suit brought by members of various retirement systems, asking the court to order the state to fund the system. The court refused to do that, noting the importance of legislative discretion in this area and concluding that the law did not give employees vested rights to any particular statutory funding level."

In other words, the legislature may get the benefit of the doubt.

That said, both Reynolds and Columbo readily admit that they are speculating.  They suspect we won't know the real answer for at least a year as the case works its way to the Supreme Court.
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