boys at all are you ready to proceed and i note that you're going to split your time and rest you work it out between the two provisions like health care benefits are subject to modification i will be splitting my time even li with counsel for the retirement plan trust and i will be addressing why this retirement plan agreement this case the language of the agreement as i said earlier is clear and unambiguous in expressing the intent of both the unions in the c t a as to vesting pension benefits but by the absence of any vested in language of health care benefits like any other contracts they are subject to modification and later remans sectional eleven of the remake clearly civically provided the particular constitutional guarantees were to remain subject to the authority of the state republican safety and welfare required when they came time to address the rights conferred by membership in public pension systems however this court pointed out the drafters included no similar reservation of authority so this court found that there was no protection under the police power likewise here the drafters in a collective bargaining context knew how to best pension benefits and they did so in that in there is knowing when the parties negotiated the collective bargaining agreement which includes a retirement agreement therefore the parties negotiating a retirement plan agreement and no way of knowing what additional language to include  obligations do not survive beyond the expiration of the collective bargaining agreement court should not construe language in the contract create lifetime benefits unless the language is clear these are basic rules when a retiree or active employee reaches the age of sixty five then they go to heart beat which is another set of benefits because then they can take into account medicare modified benefits it does not provide that up until age sixty five they're given benefit that would go beyond the terms of this so if a collective bargaining agreement and if that wasn't clear enough if you look at other provisions of that contract if you look at the whole agreement it makes it even clearer what the parties because in section eleven which i mentioned earlier it's a benefit the word bestie is mention i also mention in section twenty one point one which talks about when that fund is distributed ultimately it says for syslog in twenty one point one it is the intent of the parties to maintain  modification that is where clear is that pension protection clause protects the contract that the parties entered into nothing more nothing less does not change that contract this court said put no twelve in that position that they would not allow the unilateral taking away by the legislature of benefits that have invested between the parties this is not a unilateral taking away this is  not explain how enforcement of this condition to which the parties agreed in which is existed throughout the duration of the contract and become an unconstitutional impairment of that contract contracting parties raises and has some porton themes that arise from it and the first we submit is whether the appellate court in this case committed as we would submit reversible error when it interpreted the contracts at issue here including a collective bargaining agreement by applying a faulty and rejected presumption in favor of besting retiree health benefits in the collective bargaining agreement another issue that arises generally is whether collective bargaining still exists in illinois and can be used as a vehicle for the modification of retiring health care benefits another one that seems to lurk throughout the briefing intoned this case whether employees who do choose to receive retiree health benefits as a result of collective bargaining can accept all those benefits that accrue but then individually choose to reject the limitations that were placed in those benefits and bring lawsuits like this one i won't collective bargaining agreement and the related retirement plan agreement it tainted the entire analysis of the appellate court and it led to its conclusion a wrong conclusion that there was a viable breach of contract claim and a co the trial court basically read the agreements here without that presumption and found that the language here did not passed any retiree health benefits the contract was clear the appellate court read the same conference but supreme court in its recent decision of a mingy polymers that just came out during the course of the briefings case justice thomas wrote for the majority in the u s supreme court and justice ginsburg wrote for the concurrence there wasn't single dissent in that case and they all concurred in it to agree that there was no presumption and no presumption favor vesting of retiring health care benefits should be applied by any court when  that yardman doctrine is now following that low we're not really blaming really i don't want to be too harsh on the appellate court because in the at the time it ruled it didn't have the benefit of homer's case at the time it ruled it didn't know that the u s supreme court was going to unanimously rejected doctor and polymers by the way we would submit is not limited to federal or rissa law it basics holdings on ordinary contract has the right to do with respect to the conference i don't want to repeat my colleagues comments with the contract but i want to make a couple of additional points when the parties here want to divest the rights they knew how to do it they vested the pension and nobody's in section eleven of the retirement plan agreement how many times in that section that they use the word best i counted ten they they best of these rights repeatedly in section eleven for pension and nobody's when they talk about retiring health benefits how many times do they use the word vast in section twenty not one there's no reference to it and the trial court and even the appellate court look to contract particularly in section one thousand two the collective bargaining agreement section twenty three one of the prime plan agreement has a general reservation of rights and allows modification if the parties go to the table and want to modify or change benefits that kind of reservation of rights clause was viewed favorably by the seventh circuit in rockford power train to find that there was no vaseline there for either in that case life insurance benefits or health insurance bargaining agreements and the retirement plan the public court said we have no need to consider but the illinois constitution also provides him with a vested right well if this court chooses to go into the constitutional issue is a point that started biting it to do commentary to the constitution here what was that contract that is the retirement plan agreement but del is a very instructive case we would submit in which this court said the plaintiffs rights became contractual in nature here doesn't hurt preclude any modification of her tardy health care benefits when those changes are made through ordinary contract principles here what do we have we have all point to this and see they were always members of the these retirement health care benefits could be altered or modified under the terms of the retirement plan agreement through collective bargaining and that's what happened all the points of screams here arise from the collective bargaining agreement and the related retirement plan agree and all the modifications that were made here were done in accordance of collective bargaining in accordance with the provisions of those contracts and with the full a sense of the parties the ben arbitration or what's agreed to by the parties the memorandum of modified in a court with usual contract principles of counsel let me ask you a question over here your time is running out and i don't i don't remember to you this is a big stack of papers here i think last week on may sixth is when the  opponent and i just haven't kept up with this i don't know if you've ever written i don't know that we want any more responses but they are you pretty strenuously that that this case begs strongly for a remained on these factual issues that are still in controversy that we shouldn't be ruling as a matter of law i mean i'm not sure that mr eaton address that and i don't know if you were going to i just wanted to throw that question out there well were is there brief i need to be looking at the deal with that to defend their constitutionally protected and vested retirement system benefits and this court should also hole that all the plaintiffs hired on or before september fifth two thousand and one have a vested right to a paid health benefit in the  first the collective bargaining agreement here defines the terms of one of the illinois retirement systems and therefore the pension clause is relevant to this case and particularly in light in light of this court's decision last week in the pension reform litigation decision it is clear that because it paid health benefit was part of the retirement system here for some thirty years it could not be diminished or impaired as it was here through legislation or collective bargaining without the knowing consent of the individual retirement system participants contrary to defend its position there was a unilateral duction here there could only be a modif benefit by the bilateral agreement of the individual retirement system participant deciding to weigh their own individual vested deferred compensation and their own constitutional right second honor i think has as multiple cases in our brief whole a collect even a collective bargaining even in the private sector when there are constitutional rights and fall a collective bargaining representative and a public employer can create vested rights through collective part but once those vested rights are created they become the individual right of the employee and therefore those vested rights then are no longer subject to being way through the collective bargaining process in collective bargaining agreement would have no effect on the original agreement for the current participants who already had a vested right so consistent with the pension clause if a collective bargaining agreement that defined the terms the retirement system created that vested benefit would be vested for the current participant they would have a vested right to the pensions detail than that collective bargaining agreement and the retiree health benefits the disability benefits and the other terms that were part of the retirement system here in the retirement planning and those benefits could not be subsequently diminished through collective bargaining or through as here alternately it was cut through legislative action doctrine argument that was just pointed out in our you'd buy council on how does that weigh in on your response to justice karma i think the critical distinction here is that this is a collective bargaining agreement defining the terms of an illinois retirement system it's not a private elective party agreement in the public sector a critical necessary piece of the energy palmer's decision is the fact that in the private sector there's an absence of any background vesting retirement benefits in the private sector under at risk of pension benefits or vested therefore if a collective bargaining agreement includes pensions there's no need at all for the collective bargaining agreement to say that the pension because it is interesting but that's not so for retirees health benefits and therefore as the supreme court held the collective bargaining agreement has to express some kind of intent to vest those benefits if they're to survive the expiration of the collective bargaining agreement but here as the court's conserving decision made clear of the clear and unambiguous terms of the pension clause show that the voters of illinois decided that besting protection should extend to all the benefits of retirement therefore for afflicted barring that defines the terms of a illinois retirement system background law the pension clause says that both the pension and the retiree health benefit best and therefore there is actually no independent meet at all for the collective bargaining agreement to express an intent to fast and even though the appellate court below in the marconi decision relied on other considerations for applying the presumption and addition to that point i would note that unlike in the private sector in federal jurisprudence here in illinois there is a well self settled rule that any ambiguity in the  terms of illinois retirement system should be interpreted in favor of the retirement system participant therefore if there were any in ambiguity in these documents they would have to be interpreted in favor of their time and system  the us if the c t a and the transit unions had intended to disclaim besting of the retiree health benefit they would have had to have done so expressly and unimpeded wesley when that benefit was a stablished in the terms of the retirement system bargaining are wrong this is not a case like kerner where the terms of the system contain an express condition where a pension would be eliminated where if you work the terms of the system expressly said that if you're committed convicted of a felony you lose your right to a pension here you know if you they rely simply on provisions that allow the c t a and the transit unions to amend and modify the terms of the collective bargaining agreement through collective bargaining but i think that's no different than the standard power of the general assembly if this were a purely statutory system the general assembly always retains the power to amend and modify the terms of the retirement systems through amendments to the pension but the constitution places a limit on that power they cannot amend and modify the terms of the pension code so as to diminish and impair the benefits of current participants i think the decision last week in the pension reform litigation made clear that the pension clause protects a contractual relationship but it also makes clear what the protections are for the benefits of that system that they may not be diminished or impaired and i don't think the decision can be any different in the c t a retirement plan and that plan the general assembly grant to the  power to amend or modify its retirement plan including through collective bargaining but the constitution necessarily places the same limit on that power the c t a may collectively bargain to modify the terms of the system individuals makes a new woodies and health benefit retirement system benefits and effective bargaining agreement fundamentally different from the other terms and conditions in a collective bargaining agreement like wage scales that can't be modified even if the diminishment of benefits here were complex nearly through collective bargaining it would still be an unconstitutional and ultra vires action of the union moreover you know addition to the you know it's in your briefs and i know there's a slightly different argument between the active participants and those that are in active but it would seem the collective burglary in the nature of it being you get some right you benefits but that howard does not give them the representation capacity to bargain away already vested benefits and that would be particularly true here when it's a constitutional right involved and so therefore i think in a contractual analysis if there really were a bilateral negotiation agreement going on here where the individual was involved in the individual was able to bargain or  make the decision about their consideration and was that consideration valid that could be a different case but that's not the case here and i would absolutely know in this would go to justice kilbride's question earlier that the consideration that the defendants propose in this case i think is unambiguous lee insufficient even if it was appropriate to consider and absolutely that would be a factual issue for and there's no factual record here as to even what all those benefits w bargain away the constitutional rights and vested benefits of the members it represents importantly only the members of the transit unions or the unions represent not retirees they don't represent or not employees not their party unions but because those cases fail to even acknowledge let alone distinguish the rules that a bargaining agent cannot trade away the best of rights of their members and should not be allowed to bargain away the constitutional rights without the individual consent of the members i think those new york cases just got that wrong in fact in the shack case that the the dissent in that case was correct section twenty point one two expressly states that this benefit terminates when the retirees attain to age sixty five not when the collective bargaining agreement expires and then when you read back with section twenty point one to see if the retirement plan freeman which defendant speak nor that provision expressly states predicts pressley makes eligibility for the benefit based on the higher date every employee and retiree hired before september fifth two thousand and one will be eligible for the benefit that's interesting way very consistent with the vesting rules under the pension clause the one that provision was added to the contract it eliminated the retiree health benefit only for new hires and defendants interpretation would not only leave that provision illusory it would actually make it absolutely meaningless if the retiree health benefit here expired within two years at the end of the term of that contract it would be absolutely have no meeting that new hire hired on september fifth two thousand and one would be eligible for the benefit because they cannot possibly receive that benefit before they were tired not to mention it just is inconceivable that that's what the parties would have intended that thousands of of of c t a employees hired for that they could not possibly retire before the expiration of the collective bargaining agreement would not be entitled to those benefits and the article eleven deferred vested old age pension that defendants relied on in their presentation here i don't think changes changes the decision that's the only provision that uses besting and that section eleven section as the appellate court recognized recognized actually makes sense that it used the word fast because it was referring to only the situation where an employee after ten years of service is too young to meet the age requirement for retirement they are vested for this deferred bested old age retirement allowance so that they know that will come when they turn sixty five thirty years later they're still entitle to that benefit but  that provision makes clear you get that benefit when you're not eligible pursuant to the section eight normal retirement date pension the section ten early retirement pension or the section twelve disability pension none of those other pensions correctly consider each of those provisions and i will i will note that as the public courts reliance on the hockey decision shows that even without the presumption that we think is correct even without considering the pension clause principles that we think this work must the provisions of the collective bargaining agreement here do show that intent of that trying to standing the constitutional protection for retirement benefits here is also why all the pointis must have standing we detail in our great briefs the reason why do you fair repoint is not message necessary because our claims are not subject to a mandatory arbitration clause but one simple fact above all other makes it necessary for the plaintiff stance to have standing the c t a did not simply make these changes through collective bargaining but ultimately the general assembly enact the cuts through public act ninety five seven away therefore plaintiffs can restore their retiree health benefits to the status quo ante only with the courts passing on the constitutionality of the act any other procedure would be futile also remind the court that their arguments would apply to the pension annuities as well if the plaintiffs don't have standing here to protect retiree health benefits they would not have standing to protect their pensions at all because they're detailed in the very same collective bargaining bart the transit unions good bargains will eliminate their pensions entirely and they would have no standing in court and the unions discretion to choose not choose to defend or not to defend the rights of their members to retirement system benefits cannot substitute for an individual right of action in court because the unions as here might choose the other interests of their membership are more important than the constitutional rights or vested retirement system benefits of other of other their here and even that memorandum of understanding that we think creates factual disputes cannot be a basis for a decision on a motion to dismiss that certainly it's certainly not the record and i certainly believe it's true it was not at all subject to any ratification but  just to follow your argument if i understand it were you're saying at least on these constitutionally what you say are constitutionally protected right it would take the individual involves ten thousand employees c t a active and retired he would be looking for ten thousand separate ratifications i mean to two to approve what the union negotiated is that what you're saying correct your honor and i don't even think just simple vote on the contract would be sufficient no i'm talking about a specific you know exchange for something else that you know with sufficient consideration i see my time is up thank you thank your hon vesting rules were says term were created arise from the pension clause of the illinois constitution he mentioned there was a unilateral reduction here of benefits and he kept mentioning that these were vested rights well that's the whole issue in the case this is this is the issue we don't agree with at all the pension clause in our view doesn't vest anything the pension clause protects it protects a contractual relationship it mandates a contractual relationship perhaps between employer and employee but it doesn't vest retirees health benefits or anything else what it looks to is the contract and the contract here is a collective bargaining agreement and it's also the retirement plan agreement which is part of it and then the question is under that contractual relationship which is protected by the pension cause what was fast it and we're submitting not retiring health benefits and we're submitting that the trial court correctly found that they were not this so do we concede that pension annuities are vested in this agreement yes we do but that's not the issue in the case the whole issue in the case were volves around and solely revolves around their rights to retire health benefits i'd like to respond to the point that this was a unilateral reduction it was not unilateral at every step of the way the parties to the collective bargaining agreement agreed with clear there but they're not intending and nothing they're doing is intended to impair or reduce anyone's rights under the pension their pension rights if they thought things were best and why would they reach such a memorandum understanding saying that to begin with what's really interesting i think i'm possibly leak about the statute that's at issue ninety five seven away is it openly refers to the memorandum of understanding and i'm talking about in the legislation recognizes that the parties to the c b a agreed to these terms through collective bargaining and that's why it's adopting it and rock referencing it i don't know how many statutes explain expressly refer the memorandum of understanding like this one does this is not a unilateral edict or something coming from above this is something that was negotiated by the parties the collective bargaining agreement there were some comments made about what's the scope of the m m g that case especially the concurring opinion it's not limited or there's no distinction between public and private sectors as they want to drop this is a very broad doctrine that polymers is putting out for courts should that all courts should be applying ordinary contract principles should one of any presumptions to determine whether retiree's health care benefits or vests that are not in the collective bargaining agreement it's that brought rob public sector private  just mention of the haiti case in illinois public course he was a case that didn't even address the pension cause it didn't come up nothing there was a question about consideration here and there was an argument made that it was in  some insufficient the consideration here involved a cap on the premiums that the retirees would pay a two and a half million dollar one time infusion over five hundred million dollars  two point five million dollars what it was for it was a one time payment for retiree health care benefits and how it was exactly how it was distributed is not clear to me but they don't want to take all my time but we would ask for the reasons we also submit in the briefs that the appellate court decision be reversed in the in the way that we submitted but that it also be affirmed in finding that there is no standing for the current employees active employees on any of these claims thank you green and i did discuss the term vesting with mr cantor the cals of the committee on style and drafting and we thought it would be quite fair if a person undertook employment with a statue that provided for contingency for lowering the benefits some future time that this was in the contract he accepted these benefits were contingent of being modified at some future  pension protection clause never intended to change the contract intended to protect the contract that the parties are into so what we're dealing with here is number one  individual person would have to give their consent last week this court dealt with a situation where there were forty thousand state employees is that what we want to hold that you cannot any longer rely on the unions to represent those individuals in a collective bargaining context if that's going to be the law this is a big when you're talking about forty thousand ten thousand five thousand they were represented as members of the retirement plan it was a give and take and there was consideration just time machine raised just ties to raise as well the two point five actually goes to the retirees and there was also a billion they're trying to get out of it individually despite the fact they were so so we believe that if this court decides in agrees with us as the circuit court did without a presumption that bad agreements that provide for best take you very much for your argument this morning how you are excused at this time