removing that legislative parag the issue before the court today is whether as defendants argue the pension plus provides the same robust but not absolute constitutional protections provided to all countries or whether it's plaintiffs argue in the circuit court held in our country pas goes far beyond contractual protections and this instead a categorical and absolute ban on any reductions to pensions even under extraordinary circumstances that would otherwise justify the use of the state's police power to modify other countries pensions would be entirely off limits regardless of the essential state services that might have to be eliminated and if there were a catastrophic catastrophic epidemic or natural disaster pensions could not be even temporarily reduce even at the expense of lifesaving services because most of the state you know these scenarios may seem extreme they are but that is what players are asking for it is the state's solemn responsibility to protect the public interest public health safety and welfare in extreme situations but the necessary consequence of what plaintiffs are demanding in the circuit court agreed to would tie the state hands when it's need to act is most pressing we cannot emphasize enough the reality that accepting plaintiffs absoluteness reading of the pension clause has affects the go far beyond this case  defendants reading of the text establishes the unremarkable proposition that the protections of the pageant cause are equivalent to the protections of the contract clause which like the pension clause and many other constitutional provision enforceable contractual relationship which is at the very heart of the clause it is faithful to the purpose to raise public pensions from her to g s to contracts and is consistent with the history of  ever read the clause plainness reading also at a minimum raises a serious federal constitutional concerns and it is such a radical reading would have been such a momentous departure from the settled background law that the delegates are presumed to have known that it should not be presumed in the absence of explicit and unmistakable language language that is in neither the clause itself nor in the constitutional convention debate now before talking about the text the purpose the history and the president if you want to say a little more about defendant's reading of the cause because plaintiffs have tried very hard in their briefs to scare us to argue that defendant's reading essentially means the clause does nothing that it creates a moral hazard under which the legislature could simply choose to ignore its pension obligations and then declare an emergency or that it could simply decide it has other priorities besides pensions this argument presents a false choice and this characterizes our position this case does not present a choice between plaintiffs absoluteness reading and no meaningful protection at all as we've already no the pension post provides the same protection available under both the federal and state contract was a surgical aided by this court and the united states supreme court for more than a century and a half those protections may not be absolute but they are significant and as this court has recognized it is rare for courts to allow the alteration of contracts pursuant to a state's police powers in even one such alterations are justified they must be tailored to the situation at hand so we doing a pension pause as allowing for the exercise of police powers under extraordinary circumstances does not mean that this case is over to the contrary all planets absolute reading would preclude defendants from providing any justification or evidence in support of the pension reform act that is at issue here under the correct reading of a clause the circuit court will on remand have the opportunity to consider evidence and conclude on a full factual record whether the circumstances justify the act so let's turn to the text of the pension pots it says in relevant part membership in any public pension or retirement system of the state shall be in a forcible contractual relationship the benefits of which shall not be diminished or impaired so the pension clause explicitly creates a contractual relationship and this is be altered they are not absolute and everyone in our case apparently agrees that as we explained in our opening brief it is an ordinary contract principle that contractual relationships are subject to the limitation on the basis of the contractual relationships the clause says that the benefits of that contractual relationship shall not be diminished or impaired the defendants will have you believe that this language sweeps away one hundred fifty years of precedent and contractual relationships and confers an absolute protection on heard of an american contract but the diminishing of her language simply cannot bear that weight first the dimension of her language refers back to the  forcible contractual relationship it says that the the public pensions are forcible contractual relationships the benefits of which shall not be diminished or impaired it does not say the public pension benefits ch diminished or impair second the language tracks the contract clause which everyone agrees despite its absolute language is not in fact absolute illinois contract plugs provides a relevant part that no law another thing plaintiff's reading of the diminished and a parallel which reads the contractual relationship out of the clause entirely a public pensions have an absolute protection then they are not contractual relationships in fact they have an absolute protection then a variety of different contract doctrine such as no relation that might under some circumstances allow for the reduction of pensions cannot apply in other words plaintiff's reading creates not just  internally inconsistent clause that's at war with itself in contrast defendant's reading harmonizes the different parts of the clause and reads the diminishing imperiling which as reaffirming forcible contractual relationship to talk now a little bit about the purpose in history if you turn to japan so in your brief you stated if this court agrees with your argument that quote this court will not be granting the state a license to modify its own contractual obligations whenever it merely prefers not to fulfill those obligations i guess you remember that perhaps they're right but isn't that in fact exactly what we would be doing if the court holds that the state can invoke its police powers to violate core constitutional guarantees to respond to an emergency that at least arguably the state itself created then are we giving the state the power to modify its contractual whenever it wants for instance the state could simply fail to fund the pension systems and then claim an emergency or no that's not correct for several reasons but first of all the  can be such an important public purpose and what we are asking this court to do is no different from what this court and the united states supreme court have done for many years with respect to the contracts clause including with respect to contracts entered into by the state itself if there's an important public purpose then the courts looked to a variety of factors to see if the if the exercise of the police power was reasonable and necessary under the circumstances one of the factors that the courts look to is whether or not the the impairment is unforseen and unintended talk about that from them yes and i don't want to spend too much time on factual matter since you're raising a issue never unless you've included a statement of facts in your brief setting forth how you believe the state got to the point it is at now yes so i wanted to ask you a couple of things first you blame the problem that  state had in one thousand nine hundred four established a new pension funding regime that it was following what it was on pace to be fully funded under that regime on time it was not simply ignoring its pension obligations and then it went out when a rather ordinary recession that white in fact the forseeable came along claimed in emergency a week i guess we can arguable argue about how foreseeable recessions are and even bad recessions but no matter how much you want to point toward the recession isn't it true and i think you've already said so that the state left the funds vulnerable to the recession in the first place it is true that the state that the funds were not fully funded so what do we do with the blame all to meet we going back to the state well first of all let me say this is america question if your concern is what the state should have done differently whether the state was acting appropriately that's a question for the circuit court i read him however i have to touch about that too i don't want to monopolize here but since you brought that up in your motion for an accelerated bakit you insisted that the case needed to be expedited so that the general assembly would have an answer on the on the law's constitutionality by the end of the day but in your brief and now you ask us merely dancer a legal question and then send the matter back to the tr were you not to it would be very important for the general assembly to know that as soon as possible in response to the fiscal emergency is the legislature acted to appear in the existing contractual rights any others like an vendors significantly in arrears i believe at the moment something like seven billion dollars behind in its in its in its payments to vendors that that is also a type of impairment of contract to return to justice thomas question about about the whether or not the state left itself vulnerable and therefore can invoke its police powers one of the other factors the courts look to is whether or not the is what it to what extent is the impairment appropriately targeted it would quite frankly not be a reasonable exercise of the police powers or the general assembly to say for example we're just going to stop paying current retirees pensions altogether that might solve our problem it might solve our problem entirely but that would not be a reasonable exercise of the police powers what the general assembly did here is to say that it was going to ask that ask the retirees to to reduce the amount of money that they would be receiving and the amount of increases that they would be receiving in the future nobody's pensions are going to be cut in absolute simply reduces future increases and it the total amount saved by the pension reform act is only about twenty percent of the total unfunded liability it's far less than the total amount that is attributable just the great recession and it does not ask the retirees to to to to to help pay for the past underfunding of the pension system and the reason these police powers should be involved because the dire situation the state is right yes anying crime cruelly between may have been the income tax reduction by twenty five percent though that is again a merits question whether or not the state can invoke its police powers in this context and use and use i mused those powers as it did one of the other factors is what other alternatives hasn't looked at i think it's fair to say that the that the budget situation in our state is not yet fully resolved so what the fact that the income tax expired may well be relevant and remained but it's not relevant here today and i fact the courts have been clear that raising taxes alone can't always be the answer to a fiscal crisis when the state might otherwise want to use its police powers in faith to for example united states supreme court indicated that in the buffalo teachers case the the second circuit this quite explicitly if that were the case that raising taxes is always the answer to the fiscal crisis then fiscal crises could not justify the use of the police powers and the courts have been clear that they do under the contract  i'd like to return for a moment to the what the delegates were doing when they brought the the pension cause into the constitution at the point that it came into the constitution if there was an unan what it's turned out to mean as local workers started to figure out during the convention was that local municipalities could take advantage of the gratuitous nature of engines under the prior law and  understandable reasons made minas workers very nervous so in the middle of the convention there was the scramble to find a solution to the problem as loose listen to the problem was borrowing new york's laws it was not simply drafted it was  from new york with very minor changes so we should look at what new york was doing and as its core is indicated when you've been active it's clones it was an act in one nine hundred thirty eight and it did sell quite explicitly because it wanted to change the status of a public pensions from gratuities to contracts but new york doesn't have a contract clause in its constitution so in order to provide the same constitutional protections that that would that would be that might otherwise be provided new york had to add some language that to its pension clause and that's where the diminish and imperiling which comes in and used the words diminish and impair because those were the words used in the cases it was responding what do we do with the clear evidence from a constitutional convention that shows that the framers in time in america in the points of pension cause was to ensure that in trying economic times what we have here that the state would not attempt to diminish tension about me i my time is expired but you may answer i don't agree that that is the entirely the clear intent if you read the debates from all the way through the clear intent is to provide contractual relationships for pension benefits it is true that one of the reasons to provide those benefits is to provide workers with security so that they would know that they would have financial support support in retirement and that is why in the exercise of the police supposed to do with constitutional questions well yes retaining give effect to the intent of the framework but of course i do agree that it would be problematic but it would be problematic for several reasons and one is that it would raise a serious federal constitutional concern that that the the the delegates actually gave away a fundamental attribute of sovereignty without actually saying so explicitly so i would argue that that alone would raise issues of constitutional avoidance that should to read the clause to give up this core attribute of sovereignty for all time thank you thank you this is a case about a constitutional provision one that is explicit clear and on and unambiguous and that is subject to no stated exception the state has not cited a single case where the reserved sovereign powers and police powers have been held to override a constitutional provision and that's because there is no such case our analysis concerning the meaning of the pension protection cla and whether it is subject to the state's police power follows this court's mandates first to consider the words themselves of the provision second to consider the drafters intent and third obviously to consider this court's prior opinions and that's what we've done when we look at the meaning when we seek meaning in the presence of pension protection clause we note first of all that the clause is a stand alone independent provision not part of the  clause subject to note the exceptions such as the police power which is a perception explicitly stated in regard to the right to bear and keep  we note that the pension protection clause has plain clear unambiguous language with again no stated exception we note that that language is so simple and plain that the voter's guide concerning the one nine hundred seventy constitution the guide for the voters to aid them in understanding what they were voting for simply said this section is new and self explanatory indeed the words in the pension protection clause are just that they are self explanatory they they have common nanine in this court have said over and over again that the first and foremost can and regarding can constitutional interpretation is the plain words the plain meaning of the words these words are understood by everyone of pated the very situation that this court is now reviewing a general assembly that invokes fiscal problems a lack of money in order to invalidate a constitutional protection we note in in determining what the intent of the of the drafters is but they wanted to create two things first and with certainty as a solicitor general has set a contractual relationship a contract that was binding not was the law until the one nine hundred seventy constitution one where many pension benefits were gratuitous what they intended to create was a binding contractual relationship one in forcible in in law and i'm paraphrasing what the drafters actually talked about what the discussion  was a binding contractual relationship that was not based upon gratuity so the first thing they were addressing was who is covered by pension protection and the answer to that is every public employee who is part of the pension system and the second thing they did and this is clear from the debate they explicitly said we want to create two things the first one i've already talked about and the second one is to ensure that that the the pension rights they were talking about were guaranteed and that's just the language that says the benefits shall not be diminished or or impaired those two things were the object of this constitutional convention and they succeeded mightily because anybody who reads that provision the pension protection clause can't walk away with any other interpretation we get all kinds of nuances  the the contract clause and all of that but it's clear in meaning and again the first candidate that this court applies concerning interpretation is that how plain and how clear what the the words say that's numerous times reviewed this clause and they have said just that has recognized that that was the intent of the of the of the draft another intent that the drafters had was to force to indirectly force the general assembly to fund it in an adequate way the pension systems that the drafters knew that up until nine hundred seventy and beyond as it turns out that the pension systems were grossly underfunded and they've been underfunded ever since today there is underfunded as they were back in one nine hundred seventy they wanted to indirectly persuade first the general assembly to fund these systems adequately by conveying to them the fact that  e obligations were real that the benefits could not be diminished and that's the way they did it is absolutely clear that the intent of the drafters when the general assembly invoked fiscal problems fiscal to the difficulties not having enough ultimate scenario the doomsday scenario as an argument that argument simply doesn't apply here that's not the situation that's not the case before the court the case before this court is an invocation of the general assembly as a matter of law construing all the things i've talked about the plain words the intent of the drafters the case law from this court from from felt before of the cases the cases tell you how this clause should be interpreted and what it means and the cases they rely on concerning the contracts clubs none of them have ever overridden a provision of a constitution we're talking about statutes about contracts but never a provision of a statu of a constitution in that spend a case for the history of this court from the time of the civil war in merchant savings loan in trust  nova is right on point this court was confronted with whether or not insurance benefits were a part of pension benefits and when it said yes there was no other alternative that said those benefits could not be diminished even the dissenting justices agreed with that that principle with the fact that if it belonged as of a benefit it could not be diminished in arguing that the state this construes the entire concept of federalism it's misguided in arguing that the general assembly's police power can never be withdrawn by the people through the constitution it is important to note that in support of this argument on page eighteen of its reply brief the state courts the decision of this court going back to nine eighty four parker versus people of all of the illinois the proposition they quote is this the police power is one of the great purposes for which the state government was brought into existence the state furtive fails to furnish to this court a sentence which followed that by two sentences this quote and this is determinative in this case cool this power and the referring to the police power can only be destroyed or withheld by the people when forming and adopting the constitution that's exactly what happened in one nine hundred seventy when the drafters formed this provision and when the people exercise their privative in voting for it and thereby withdrawing the power of the general assembly to diminish or impair pension benefits by the exercise of their resolve reserve power by the exercise of their police power by the exercise of any power that the general sommelier might have simply can't be done and we're talking about a constitutional provision the new york case of of flushing national bank that we've cited and in new york is is relevant because our constitutional provision the pension protection clause is based on that in that case flushing national also a case involving fiscal difficulties great fiscal dist difficulties for new york the the flushing national said quote the public the police power which may override statutes is not a higher law which transcends constitutions as well the combination of flushing and parker the very case they cited is determined to hear the state's cites not a single case in which a provision in a state's constitution was itself held to be allotted to  a crowded theater that section of the only constitution says that you shall act responsibly the only constitution tells us when there are exceptions the pension cla and i turn to this court's opinion just last year in conserve you said we may not rewrite the pension protection clause to include restrictions and limitations but the draft is it not express the citizens illinois did not approve those limitations are not in the pension cost you can find them in various other parts section four of the freedom of speech you can find them in a number of other clauses that i cited in our state also suggests that there is no difference between diminishment pair i think that the best case to describe that to us is justice freeman's concurrence descent in spit out the one which quite clause that case was about failure to fund taking money out of the fund and diminished has a different meaning in this says we are going to guarantee that people get the pension so this was a risk just a  green and delicate kid and that gerent t tells us the purpose behind it and the pension protection clause itself doesn't not have exceptions it's not the right to bear arms except that we have a police power understanding of american theory of government that all power flows from the people and as mr de vito indicated this is this is where the sovereign power resides the people give voice to their sovereign power through the illinois constitution and it was back in  sovereign power resides in the people and the people adopt the constitution was the sickly provided for a pension clause having different wording than the contract was the pension cause must mean something and secondly  the fact that the with regard to the right to keep and bear arms or was particular reservation of the police are those that have not indicate what some of the people the sovereign has given to the legislature to have with them but the let me answer that question in two parts first the part as to what whether or not as the state can it completely alienate its police powers the united states supreme court said in stone in eight hundred seventy nine that the people themselves cannot do so in this court in mills and eight hundred forty five so that the state may not alienate its police powers so while certainly the state that the constitution restricts the state's ability to act it cannot give away certain absolutely or in fundamental attributes of sovereignty the ability to protect the public welfare in extreme situations is one of  now as to why the pension clause is a standalone clause and different from the contract clause i've already talked about where the wording of the clause comes from and why new york from which we took the clause had  workers him about after the bill of rights had been vote voted on our first reading and the cut the contract clause of our constitution resides in our bill of rights and if you look at what delegate kenny says delegate he says well i wasn't sure the best way to do this and i went to the committee one of the committees for advice and this is how was she was advised to proceed nobody not once said when talking about whether this would be better off added to the contract c nobody not once says well we don't want to do that because the protections wouldn't be strong enough that is we that there's deafening silence as to that instead the apparent reason for this call is to be standalone has to do with  order in which things happened at the at the convention i'd like to talk a little bit about absolutely which and then the contract clause of the contract clause is written in  for more than a century and a half have said that we don't read that clause as absolute so when mr de vito says there has never been a case that says that the police powers can come into play to income and tension with a constitutional guarantee that's not true there is one hundred fifty years of case law addressing the contract clause you know we disagree that what is happening is that there is an exception or being overridden in the constitution rather instead we believe that the delegates chose their words chose a contractual relationship deliberately in order to establish the ordinary provisions of a kind of a contract law in order to cooperate that they use the words of guarantee and promise when they talk about this in the debates that's the way people talk about contracts when we make a contract we promise each other we don't add all the provisions and and limitations that contract loss of parts but those are read into the contract and that's the context in which the delegates are speaking again the state is a quote this court will not be granting the state a license to modify its own contractual obligations whenever it merely prefers not to fulfill this those obligations but isn't that exactly what we what we would be doing if the court holds that the state can invoke its police powers to violate core constitutional provisions to respond to an emergency that arguably the state itself created then are we giving the state the power to modify is consistent contractual obligations whenever it wants you know for instance the state could simply fail to fund the pension systems altogether and then claim an emergency this court would be providing the state under the pension clause exactly the same power that it already has under the contract once the state has the power under the contract clause do you get to alter its obligations pursuant to its police powers under the correct circumstances or what what was the import of your language reason is that it creates an emergency that now it can invoke the police power why isn't fair town it tantamount to given the state license to modify its own contractual obligations for any reason if the evidence is in the record i very clear that while the underfunding historically has contributes to part of the unfunded liability is only part and it is not in fact a substantial part of the of of the unfunded liability is due to two things one is the great recession and the other is the unexpected direction that inflation has taken over the years the the cost of living adjustments that are primarily at issue here  compel the state to make its requirements the act itself if they fail to do so that there is a enforcement mechanism and you pointed out your brief in thinking about that quote in the states simply invoke its police simply ever there has to be a substantial emergency and the state's actions have to meet a relatively demanding standard they have to be proportionate they have to allocate the burdens of a dealing with the emergency fairly  it has to be a targeted and tailored fit i don't think there's really any dispute here that there is in fact a fiscal emergency interstate and whether or not the state should be held soley responsible for that or the general assembly should be held so he responsible for that is really a question for remained the evidence in the record now does not support that conclusion do you have any cases that that allow the exercise of police power to hear the allegations complex outside the regulatory miller who short there is for example we cite in our brief on page twenty three of our opening brief in the foot no we said three cases involving teachers unions and  freezes or pension cuts and all three of those cases one from the second circuit one from the fourth circuit and one from the just report of maryland the courts found that under the the school emergencies faced by the jurisdictions there it was appropriate to cut pensions or to impose a wage freeze that the contract with the teachers otherwise would not provide thank you as i said i don't think there's really any dispute that that that the sacrifice but their position today is that there can be no shared sacrifice their position today is that any amount of money that might be that that might be owed through the of original pension code must be paid no matter what the other circumstances that the state faces might be so again it could clue zhen we ask that you remain on the case to the circuit court so that it can consider this tuesday march seventeenth