Two major pension packages in the Illinois legislature are designed to rein in retirement costs by cutting current and retired government workers’ benefits, but one group being left out of both deals is judges.
There is 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. State Rep. Dan Brady (R-Bloomington) said it is unfair, and he will not go along with it.
“A teachers’ just as important as a judge, and that should be across the board," Brady said. "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 is 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 is widely expected that any change to the pension plans would end up in court.
“Judges were excluded as a practical decision,” said Illinois House Speaker Mike 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.”
Madigan sounds confident it will work.
“I think that there will be at least four members of the Illinois Supreme Court that will approve the bill,” he said.
Those were remarks he quickly retreated from when pressed by a reporter if he had been in contact with the justices.
"I’ve had no conversations with any member of the court concerning anything,” he said.
After all – it wouldn’t be proper for a key lawmaker to try to exert influence over the judiciary, but critics argue that is something Madigan already has done .
He is not only Speaker of the House, but also 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.
“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,” said Jim Nowlan, a former legislator, a retired University of Illinois political professor, and a member of Illinois’ executive ethics commission.
“I think that the court has been perceived throughout history as a political court," Nowlan said. "The judges are elected on partisan ballots."
That is a common perception, according to Dennis Rendleman, who is a member of the Illinois Judicial Ethics Committee .
As judicial campaigns have gotten more intense and attracted more money, Rendleman said people have become skeptical of judges’ ability to stay impartial.
“I don’t think I’m totally naive about the political of Illinois, but the dynamic is different,” Rendleman said.
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 said that means judges do not carry the same sense of indebtedness to their donors as do legislators — who are constantly running for re-election.
“It’s not like the General Assembly where you can say that, you owe me on this issue, or you owe me on everything,” Rendleman said.
Rendleman added that it is 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.
“There is a doctrine in judicial ethics called the Rule of Necessity,” he said.
This rule, Rendleman said, is invoked when there’s no other court that could resolve the issue.
“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," he explained.
It came into play during a case decided by the Illinois Supreme Court ruled in 2004. That was 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 in their own favor, and 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 said a judge’s compensation cannot be diminished during his or her term. It is meant to keep the third branch of government independent, so lawmakers can’t punish judges for unpopular rulings.
That is what Gov. Pat Quinn seems to be alluding to when he justifies leaving judges out what he has otherwise demanded be “comprehensive pension reform.”
“There are some constitutional principles that are in the Illinois constitution, that, uh, make that, uh more difficult," Quinn said. "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.
“I haven’t calculated to the penny, but it’s somewhere around $190,000,” Petka said.
Petka does not apologize for it. He said he would love to still be working as a judge. He did not do anything nefarious to get his pension — it is 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 Gov. Rod Blagojevich and the General Assembly voted to – as he puts it – repeatedly raid the state’s pension funds.
“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," Petka said.
Illinois’ pension funds are in trouble for a lot of reasons, but that is a big one.
Petka is no longer in a position to decide what Illinois should do about the pension mess it’s gotten itself into.
"Thank God I no longer have to worry about those types of things," he said. "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 is still one more legal argument to consider.
“From my perspective and very candidly, I haven’t given this an enormous amount of thought," Petka said. "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 are 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.