By Scott Reeder | Watchdog.org

SPRINGFIELD — Public employees worried about their pensions being reduced are looking for lawyers and lead plaintiffs who once wore black robes.

“Public employee unions are extremely powerful entities and increasingly they want judges to believe that their own pensions may be in jeopardy if they rule against the public employees,” said John Eastman, director of the Center for Constitutional Jurisprudence at the Claremont Institute in Claremont, Calif.

Judges ruling on the constitutionality of their own pension reductions is a drama playing out across the United States.

In fact, in July, the New Jersey  Supreme Court ruled that the state’s judges are constitutionally protected from a law requiring state employees to contribute more toward their health and retirement benefits.

The court ruled that the increased contributions amounted to a salary cut and that sitting judges were protected from such cuts by the state constitution.

New Jersey Gov. Chris Christie, branded the jurists “unelected, unresponsive public servants,” the New York Times reported.

While in the New Jersey case, judges made a distinction between their own pensions and those of other state workers, in other states litigants hope to bolster the case for all public employee pensions by having retired judges and sitting judges interspersed among the plaintiffs in class action cases.

For example, in July, former Illinois Appellate Judge Gordon Maag became the lead plaintiff in a class-action against the state of Illinois.

The 61-year-old state retiree, who is pulling in an annual pension of $98,000, is suing the state for more.

In addition to the pension he began collecting at age 55 and his annual guaranteed cost of living adjustments, he contends he is entitled to free health insurance for life.

In June, Illinois Gov. Pat Quinn signed legislation that  calls for requiring retired state employees, university workers, lawmakers and judges to begin paying premiums for state health insurance.

It’s one of the state’s first steps toward reducing retirement costs.

But Maag, who not only lost an election to the Illinois Supreme Court but was removed by the voters from his appellate judgeship during a 2004 retention race, says he shouldn’t see a reduction in his benefits.

According to news accounts, the retired judge contends the new law “abolishes free health insurance to Illinois retirees who were and are entitled to free health insurance on account of working for the state for 20 or more years of service, or, in the case of retired legislators, four years, and in the case of retired judges, six years.”

So he is inviting fellow state retirees to join in his lawsuit in which his son, Peter, is the lead attorney.

Maag is making a play for sympathy from his former judicial colleagues who will likely rule on the constitutionality of the retirement benefits reductions, said Ed Murnane, a vocal critic of Maag and president of the Illinois Civil Justice League, a group lobbying for Illinois tort reform.

It’s hardly a unique approach, said Eastman, who lost an Orange County , California, pension case in 2010.

“Basically we were arguing that certain pension enhancements being offered to Orange County deputy sheriffs were unconstitutional. … A former judge serving as a lawyer for the other side stood up and told the appellate judges, ‘This could affect your pensions.’”

Eastman said although he believes the lawyer’s statement wasn’t truthful, the deputies won their case.

Judges ruling on cases that could affect their own pensions is not just a problem in California but across the nation, he said.

Murnane said  that he doesn’t dispute that former judges have standing to bring these lawsuits.

“A retired judge is no different from a retired prison guard,’ he said.  ”They have the same rights to bring a case to court. The question is, will judges ruling on their cases be more likely to rule in their favor because it is the case involving a fellow judge? I don’t know the answer to that question.”

One person who does have a definite opinion on it is Frank Keegan, editor of State Budget Solutions.

“Obviously, the reason public employee unions are picking retired judges as lead plaintiffs and as the attorneys in their cases is because they want to influence sitting judges,” Keegan said. “They want judges to rule in their own self-interest and rule that pension benefits cannot be reduced.”

Keegan said it is inevitable a lawsuit will be filed  in every state that tries to reduce its pension burden by cutting.

“There will be a lawsuit – whether it has any legal merit or not. And every time a judge who will be collecting a pension will rule on it. This is a clear conflict of interest. It’s something our Founding Fathers never could have anticipated because back then they didn’t have pensions like they do today. There are some judges who I know who can rule objectively on a case involving themselves – but there are a lot of judges out there who can’t,” he said.

But from a legal standpoint, is there an alternative?

Eastman said in some cases judges should recuse themselves and defer to others in the judiciary who have less of a conflict. But he concedes there may be times when all judges may have a conflict of interest and a decision from them is necessary.

Keegan said he believes someone other than judges should make the ultimate decision on pensions.

“Judges aren’t the ones who will end up paying for these pensions. It will be up to the taxpayers to pay these pensions. In the case of a state like Illinois, it will be the grandchildren of current taxpayers who will be paying for these benefits. Maybe the taxpayers should vote on it rather than have a judge decide. But if you are going to pick someone to decide whether these pension cuts are constitutional, have a steelworker who has lost his entire pension decide on these public employees. That is who should decide.”

Contact Scott Reeder at sreeder@illinoispolicy.org.

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