Two judges - one from Cook County and the other from St. Clair County, near St. Louis - have partnered in a lawsuit to potentially take down the state's so-called Tier 2 pension law, a key pension reform measure they say was passed unconstitutionally and which they claim has unconstitutionally denied them a larger retirement pension than they believe they are owed.
The lawsuit was lodged nominally against the Illinois Judges Retirement System and the officials who oversee it. However, the lawsuit takes aim directly at the 14 year old state law that many state officials and observers have credited, in part, with helping the state move toward sustaining its troubled public worker pension system.
Specifically, the lawsuit targets Public Act 96-0889. Approved in 2010, the measure was enacted by state lawmakers after the so-called Great Recession of 2008-2009 exposed the shaky financial standing of Illinois' public worker pension systems.
The law specifically sought to reduce retirement benefits for future workers. Under the Illinois Supreme Court's interpretation of the state constitution's pensions protection clause, lawmakers are forbidden from reducing any retirement benefits for current public employees, whether already earned or yet to be earned.
However, in the new law, lawmakers opted instead to create a new "tier" of reduced pension earnings available to those who would be hired by the state and local governments after the new law took effect in 2011. Specifically, the law removed the ability of Tier 2 participants to reap massive returns on relatively smaller pension plan contributions, thanks to compound interest annually until death. That compound interest was replaced with smaller scheduled annual increases.
And the law capped benefits, while altering how future payments could be calculated.
The law has been credited with helping the state begin to bring better financial balance to its pension system, a common boast from Gov. JB Pritzker and others. Critics, however, have asserted the reform has resulted in a system in which Tier 2 workers are now subsidizing the retirements of Tier 1 public employees, while the state's Tier 2 contributions to the newer workers' retirement accounts threaten to fall short of what those workers might receive from Social Security, if they worked in the private sector.
Critics have urged further reforms to ease the risk of future liability for falling short of the so-called "Safe Harbor" provision of federal retirement savings' law, which guarantees workers receive no less than what Social Security would pay.
In the meantime, the "Tier 2" law has been interpreted by pension administrators to also limit the retirement earnings of current public employees if they move from one kind of public employment to another.
Under traditional "Tier 1" pensions, public employees could use all of their years of public employment to calculate their final pension payout, no matter how many different taxpayer-funded agencies they may have worked for.
The judges' new lawsuit said that practice, in particular, should be unconstitutional, as applied to longtime public workers who later become judges.
The lawsuit notes that Kievlan worked for "many years" as an instructor at a public community college in Belleville, and also served for years as a member of the St. Clair County Board. She was appointed as a judge in 2013, and retired in 2023.
According to the lawsuit, Toller was appointed to the Cook County judicial bench in 2023. Before that, she had worked for 17 years as a Cook County Assistant State's Attorney, including as a top assistant to Cook County State's Attorney Kim Foxx. Toller then worked for more than a year for the Illinois Judicial Inquiry Board.
Both judges said they were treated as Tier 1 pension participants in their previous public employment.
However, they said the Judges Retirement System decided their previous "service credit" earned under their previous government jobs shouldn't count toward their pensions as judges. Instead, the JRS determined they should be treated as Tier 2 pensioners for retirement earnings they may received through JRS.
The complaint notes the differences in retirement earnings could be huge.
For Judge Kievlan, for instance, the complaint notes the Tier 2 calculation would cost her $73,000 per year.
The complaint provided no such calculation for Judge Toller's potential retirement earnings, as she remains currently employed as a judge.
Both Kievlan and Toller allegedly told the JRS they believed the Tier 2 pension determinations amounted to violations of the state constitution's pensions protection clause, because it diminishes their potential retirement earnings and they were considered "Tier 1" employees who were employed by taxpayer-funded agencies before the reform law was passed.
However, the JRS board rejected their assertions, and affirmed the decision to treat them as Tier 2 employees, based on the date they became judges.
The lawsuit asserts that application of Tier 2 benefits amounts to violations of the pensions protection clause and the state constitution's guarantee of equal protection, because it treats public employees too differently - and particularly, treats Tier 1 employees differently, based on the jobs they may take within the sphere of taxpayer-funded employment.
If successful, that challenge could invalidate the Tier 2 law entirely, or at least, result in a system in which Tier 1 public employees who become judges or who move to a different public service job can maintain their Tier 1 pension calculations throughout.
However, the judges' lawsuit also seeks to invalidate the Tier 2 law over a different concern, namely, the way in which the law was approved.
In 2010, lawmakers approved the law using a legislative process, known colloquially as "gut and replace." Under this process, lawmakers take a so-called "shell bill" - an existing bill already pending in committee - and amend that "shell" legislation to delete the existing text entirely and replace it with potentially sweeping new legislation, even if the new legislation has nothing to do with the previous text of the bill.
Legislators can then rush the new, often controversial to the floor of the General Assembly, where lawmakers can approve the sweeping measures at a time of their choosing, often in the overnight hours when few are paying attention and opposition cannot be swiftly mobilized.
According to the lawsuit, lawmakers also used that legislative method to enact the "Tier 2" pension reforms in 2010.
However, such legislative maneuvers have also resulted in a spate of legal challenges, asserting the passage of the laws violated a provision of the state constitution known as the "Three Readings Rule," which supposedly requires lawmakers to read each new piece of legislation three times in both the state House of Representatives and the state Senate before voting on the legislation.
In all instances of challenged legislation under the Three Readings Rule, the legislative record reflects lawmakers clearly did not do so.
However, the Illinois Supreme Court has steadfastly refused to consider challenges to state laws under the Three Readings Rule. Instead, they have for decades allowed the laws to stand by allowing lawmakers to operate under the so-called "Enrolled Bill Doctrine."
Under that doctrine, predicated on the constitution's required separation of powers among the three branches of government, the court has said it is enough for the Speaker of the House and the President of the Senate to sign a document affirming the General Assembly passed the legislation constitutionally, regardless of what the actual legislative record may show.
In recent years, at least two state appellate courts and other lower court judges have pleaded with the state Supreme Court to address the apparent repeated abuses of the judicial deference granted under the Enrolled Bill Doctrine.
Most recently, attorney Thomas Maag, who is challenging both state gun restrictions and a new Illinois law which blocks court challenges to new laws from being filed outside of courts in Springfield and Chicago, has again petitioned the state Supreme Court to take action against violations of the Three Readings Rule. The state Supreme Court, which has a 5-2 Democratic supermajority, has not yet responded to that petition.
In the meantime, the judges' pension lawsuit also seeks to invalidate the Tier 2 law for violating the Three Readings Rule.
"... The courts should no longer permit the enrolled-bill doctrine to block judicial scrutiny of the legislature’s disregard of constitutional requirements," the judges wrote in their lawsuit.
"Plaintiffs acknowledge that the circuit court is duty bound to follow Illinois Supreme Court precedent and, for now, must adhere to the enrolled-bill doctrine. But the time to revisit this doctrine has come, and plaintiffs request a ruling that Public Act 96-0889 is unconstitutional as it violates Article IV, section 8, of the Illinois Constitution. "
The judges are represented in the action by attorneys Terrence J. Sheahan, Jill C. Anderson and Meghan E. Tepas, of the firm of Smith Gambrell & Russell LLP, of the Freeborn & Peters Practice Group, of Chicago.
Sheahan did not reply to questions about the lawsuit and its implications from The Record.