CBA Nov.-Dec. 2020

of 1950, which increased from one to three the number of constitutional amendments the General Assembly could submit to the voters at one time, and made voter ratifi- cation of proposed constitutional amend- ments easier; the 1954 amendment pro- viding for apportionment of both houses of the General Assembly; and the 1962 amendment that completely revamped the Illinois judicial system, including apportioning representation on the state Supreme Court. “When there was a will to amend it, it was done,” Cicero notes. While the late Samuel W. Witwer, who was President of the Sixth Constitutional Convention, wrote in 1975 that “no con- stitutional convention in the 20th century was held under more turbulent and politi- cally adverse conditions,” both Ladd, a conservative Republican, and Cicero, a liberal Democrat, agree that, in today’s political climate, it is unlikely at best that a constitutional convention would be able to agree upon a new charter or that the voters would ratify any constitution that might be submitted to them. Home Rule There is no question that, despite the turbulent times during which they delib- erated, the delegates to the 1969-1970 Constitutional Convention succeeded admirably in meeting many of the modern needs of both state and local governments, and of the people of the state. Granting home rule to units of local government, including the City of Chicago and Cook County, was foremost among them. Prior to the ratification of the 1970 Constitu- tion, counties, cities, towns and villages were constrained by Dillon’s Rule, a legal doctrine under which Illinois courts ruled that a local government had only those powers expressly granted by the General Assembly. As a result, Lousin has written, even when large cities such as Chicago or large counties such as Cook “had the political and financial power base from which to launch new programs to meet the growing urban and metropolitan ills of the twentieth century,” they “first had to obtain enabling legislation from the Gen- eral Assembly,” which “soon found itself passing bills to meet purely local needs.”

Then-Chicago Mayor Richard J. Daley, whose son, future Mayor Richard M. Daley, was a Constitutional Convention delegate, strongly supported home rule, and obtaining it was one of the principal reasons why he supported the call for a convention. In their comprehensive book regarding the Sixth Constitutional Con- vention, the late Elmer Gertz, a Conven- tion delegate, and Joseph P. Pisciotte, the Convention’s Executive Director, wrote that, in the area of home rule, “as in few others, it was felt that if Chicago could not have its way, it would defeat any constitu- tion that was produced.” According to Lousin, delegates aligned with the Cook County Democratic Organization viewed the continued election of state court judges in much the same way. Under the 1970 Constitution, every municipality with a population of more than 25,000 people (obviously including Chicago) automatically received home rule status, as did any county that elected a chief executive officer. At the time, only Cook County qualified. Other municipalities, but not counties, may become home rule units by referendum. Under the Constitu- tion, “a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” Nowlan says this was “prob- ably the most successful provision of the new constitution.” Public Employee Pensions Another section of the 1970 Constitution tucked into the General Provisions at the end of the charter was little noticed at the time, but has had far-reaching conse- quences. It provides that, “Membership in any pension or retirement system of the State, or any unit of local government or school district, or any agency or instrumen- tality thereof, shall be an enforceable con- tractual relationship, the benefits of which shall not be diminished or impaired.” According to an exhaustive 2014 study of this provision by Eric Madiar, then Chief Legal Counsel to the state Senate President and Senate Parliamentarian, “The Pen-

sion Clause was prompted by concerns raised by state university employees over the underfunding of the university pen- sion system [by the General Assembly]... and by firemen and police officers that municipalities would use their new ‘home rule’ authority to abandon their local pen- sion plans.” However, one of the principal sponsors of the Pension Clause told her colleagues that it was not a full-funding mandate. “It was not intended to require 100% funding or 50% or 30% funding or get into any of those problems,” said delegate Helen C. Kinney, one of the four principal sponsors of the provision, all of whom were Republicans. After decades more of continued under- funding of state and local pensions by the General Assembly and units of local government, those funds were in crisis in 2013, with the five state pension funds alone having only 45% of the assets needed to cover their liabilities. In December 2013, the General Assembly therefore adopted an ambitious plan to rescue the pensions, which would have ended automatic cost of living adjustments for pension benefits, extended the retirement age for current employees and limited the amount of salary used to calculate benefits. The state Supreme Court, however, unanimously ruled that the legislation ran afoul of Article XIII, Section 5 of the 1970 Constitution, the Pension Clause. Former Governor Pat Quinn, who signed the 2013 pension reform measure into law, says that the clause was “more far reaching than most other states,” although it was apparently modeled after a section of the New York state constitution. Quinn adds that the clause “balances far too much in favor of those who want to get a pension versus the public at large that has to pay for those pensions.” Cicero agrees that the Pen- sion Clause “should not have been in the Constitution.” Ladd, on the other, remarks that, “as a conservative from McHenry County, I didn’t have a problem with the provision. The provision wasn’t the prob- lem, it was the way it was implemented – the fact that the General Assembly acted so irresponsibly” in continuing to underfund state pensions, and has “made no effort to correct it” by amendment. CBA RECORD 21