Thursday, December 27, 2018
Carmichael and Ambiguity in Constitutional Law
By: John M. Fitzgerald
The Illinois Supreme Court’s recent opinion in Carmichael v. Laborers’ & Retirement Board Employees’ Annuity & Benefit Fund of Chicago, 2018 IL 122793 (opinion filed Nov. 29, 2018) has already been the subject of considerable commentary. Commentators have tended to focus on Carmichael’s effect on the issue of pension reform. But another feature of Carmichael merits attention: namely, the Illinois Supreme Court’s increasing use of one particular canon of constitutional and statutory interpretation.
Nearly four and a half years before the Illinois Supreme Court issued its opinion in Carmichael, the Court faced a separate issue concerning the meaning and scope of the Pension Protection Clause of the Illinois Constitution (Ill. Const., Art. XIII, sec. 5.), which provides that membership “in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” In that case, Kanerva v. Weems, 2014 IL 115811, the Court invoked what had theretofore been a principle of statutory interpretation – the rule that “to the extent there is any question as to legislative intent and the clarity of the language of a pension statute, it must be liberally construed in favor of the rights of the pensioner.” Id. ¶ 36 (quoting Prazen v. Shoop, 2013 IL 115035, ¶ 39). In Kanerva, the Court promoted this principle of statutory interpretation to the realm of constitutional law, reasoning that the “construction of constitutional provisions is governed by the same general principles that apply to statutes.” Id. ¶ 36. Accordingly, from Kanerva onward, any ambiguity about the meaning of the Pension Protection Clause or its application is resolved in favor of the pensioner. This canon of constitutional interpretation is a steep hill for any advocate of pension reform to climb.
The Court invoked this canon repeatedly in Carmichael, where the parties did not dispute the meaning of the Pension Protection Clause but hotly disputed its application to certain amendments to the Pension Code. Those amendments had eliminated a right previously enjoyed by certain pension system members to claim union service credit while on leaves of absence from their public-sector jobs. The Court unanimously held that those amendments violated the Pension Protection Clause. The Court had been asked to decide whether, under the relevant provisions of the Pension Code, the plaintiffs actually had previously enjoyed the right to claim union service credit. Thus, to the extent that those statutory provisions were ambiguous, the canon came into play. Citing Kanerva, the Court reiterated that “whenever there is any question as to the legislative intent and clarity of the language of a pension statute, it must be liberally construed in favor of the rights of the pensioners.” Carmichael, 2018 IL 122793, ¶ 36. The Court then concluded that the Pension Code prior to the amendments was “ambiguous on the question of whether the union salary while on leave of absence could be used as a basis for calculating the pension.” Id. ¶ 42. The Court pointed out that if the General Assembly “had intended [in the Pension Code] to exclude the union salary from the calculation of the pension base but not for contribution purposes, it would have clearly stated so” at various times when the Code was amended. Id. ¶ 44. In other words, terms that limit the rights of pensioners must be clearly and unambiguously stated in the text of the Pension Code. They will not be inferred.
In this context, the standard for finding ambiguity is not exceedingly high. Reaching the separate issue of whether the term “pension plan,” as used in the Pension Code, encompassed defined benefit plans, the Court “note[d] that the existence of alternate dictionary definitions of a word or phrase, each making some sense under the statute, leads to the conclusion that the term in question is ambiguous.” Id. ¶ 61. The parties had cited multiple dictionary definitions of “pension,” each of which had some plausibility, and each of which arguably pointed in different directions. Id. ¶ 59. Thus, there was ambiguity, and that ambiguity “must be liberally construed in favor of the rights of the pensioners so as to apply to a defined benefit plan only and not to defined contribution plans.” Id. ¶ 63.
This canon of construction will likely play a more prominent role in the Court’s constitutional jurisprudence in the coming years, and there is no compelling reason to limit its application to pension cases. Whenever a constitutional provision is directed toward a certain end, it makes sense to resolve ambiguities in favor of that end. In Kanerva and Carmichael, that end was protecting the rights of public-sector pension system members. But if another constitutional provision has as clearly defined a purpose as does the Pension Protection Clause, why not apply a similar canon of construction to resolve ambiguities in favor of that purpose?
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