Appeals lawyer set for Round 2 in pension fight

You would be hard-pressed to find someone who takes more pride in being an appellate lawyer than Aaron B. Maduff.

The 44-year-old partner at Maduff & Maduff LLC said he relishes the role, joking that the “real glory” happens on appeal even though trial lawyers oftentimes get the spotlight.

“You’ve heard of F. Lee Bailey and Johnnie Cochran. You’ve heard of all the great trial lawyers,” Maduff said. “If I were to start naming all the appellate gurus, you would have no clue who I’m talking about.”

Yet one of the appellate litigator’s biggest recent victories came courtesy of a Springfield trial court.

And it’s gotten plenty of attention.

On Friday, Sangamon County Circuit Judge John William Belz ruled the state’s pension-reform law unconstitutional, setting the stage for a possible showdown at the Illinois Supreme Court and perhaps the final part of a yearslong controversy over how to rein in the most underfunded pension system in the country.

Maduff, who is challenging the law on behalf of a group of current and retired university employees, spoke with the Daily Law Bulletin about the nuances of the case, how long the high court could take to get it resolved and “Swiss cheese.”

Law Bulletin: I’m sure you’ve been over this plenty of times since Judge Belz’s decision on Friday, but would you characterize it as an unequivocal victory for your clients and other state workers? Or are there still some issues left on the table?

Maduff: Well, we focused it to this point only on the pension-protection clause of the constitution (which says pensions “shall not be diminished or impaired”), so it is an unequivocal victory.

But there are other claims that are essentially mooted by the fact the statute itself is unconstitutional. There were takings claims, contract claims. I think one group (of plaintiffs) did equal-protection claims.

But in terms of where we’ve gone, the entire statute has been struck. I think it’s the correct ruling. I think we felt it was correct since we started.

LB: After the Illinois Supreme Court decision in Kanerva v. Weems (which held that health-care benefits were constitutionally protected parts of state workers’ pensions) came down in July, the state basically said that case wouldn’t have an impact on this one.

But Judge Belz referenced that case in rejecting the state’s argument that its “police powers” allowed it to cut benefits. Do you believe Kanerva gave you a lot more ammunition?

Maduff: Definitely. Kanerva reaffirmed some principles that have been set out in a long history of cases going back — even before the 1970 constitution — for nearly a hundred years.

Kanerva also confirmed some basic tenets, such as reading the plain text of any provision. But specifically here, the pension clause. So I think it did make a difference.

LB: Belz’s decision addresses the law’s “severability clause,” and in one part, it says that the 39 subsections of the law are “mutually dependent and inseverable” but also that the act is severable as a general proposition. What does that mean?

Maduff: It’s a complicated question. The act does have a severability clause, but whether or not a statute has a severability clause is certainly not determinative (of whether it should be severed) — there’s one case that says it’s a formality.

The question is, once you sever the unconstitutional pieces, what you are left with — is that something the legislature would’ve passed?

I pointed out that by the time you take out the changes to the automatic annual increases (in payments to retirees), the changes to the increase in retirement age — you take out various portions, and what you are left with is Swiss cheese.

That chunk of Swiss cheese was not going to get passed, because if you look back at the record, you had statements by the sponsors quite clearly that this statute was a compromise, that each part was integral. That it was a compromise of each of the four different caucuses.

And you have a statute that was passed in the Senate by a mere 30 votes — that’s the least possible amount. So if that piece of Swiss cheese loses one vote in the Senate, it’s gone. Three votes in the House, it’s gone. It would’ve failed.

LB: The state will obviously appeal this decision to the Illinois Supreme Court. Is it possible to give an estimate of how long it will take until things are resolved there?

Maduff: In my experience, appeals take approximately a year, give or take, from the time that you’ve got your final order. But you know, the court could choose to work fast. Sometimes the briefing is really heavy, other times the court has seen it coming.

So, I would guess 10 to 16 months. But that’s a guess. It’s an educated guess.

LB: Is there any chance the high court doesn’t take up the case?

Maduff: It’s possible because the Supreme Court is not required to take a case, but we anticipate that they will because it is a constitutional challenge, and I think that in the end they will conclude that Judge Belz got it right.

I think Judge Belz got it right. But I would anticipate that on something of this magnitude, (the Supreme Court is) going to want to release an opinion.

One big thing I think is critical here: On May 2, we filed a motion for injunctive relief.

Once we got that granted, once it was entered … it took the pressure off of people. People weren’t afraid. And now the judge has turned that preliminary injunction into a permanent injunction, so until the Supreme Court (weighs in), we’ve got that injunction in there.

That was an extraordinary victory. We were told not to file it because we had no chance.

LB: I asked Don Craven (another attorney representing plaintiffs in the case) what it was like working on a case with so many other lawyers. Is it something you’ve ever experienced before? Is there a noticeable difference between arguing in Chicago versus a downstate courtroom like Springfield?

Maduff: Well, that’s two questions. Have I done it before? I do a fair bit of appellate work. I did one case for the U.S. Supreme Court where we had several groups.

Is it difficult? Yeah. I think that in this case particularly we had some different viewpoints and as a result you saw different briefings. So yeah, it’s difficult.

I think each and every one of us would be likely to say we could’ve done a better job on our own (laughs).

The second part of the question, is it different doing it in Springfield versus Chicago?

There are definitely differences in the way the courtroom was run, the way things are done. I think that the fact you don’t have the massive crowds you have in Chicago from a physical standpoint makes it a little bit nicer.

We have the cattle calls in Chicago in state court, but I certainly have no complaints about the quality of judges we have that I’ve experienced in either place.

I think Judge Belz did a particularly good job managing the people who needed to get their pieces in.