5989414114_995a0a4dc6_zI thought we’d interrupt our ongoing discussion of the Illinois Supreme Court’s modern history across the whole of its docket to focus on a major event at the Court coming up this week: Wednesday afternoon’s oral argument in In re Pension Reform Litigation.

First, a bit of background for anyone who hasn’t been following the story. For decades, the State of Illinois has failed to adequately fund its five public pension systems – even as the state employees continued to make their required contributions, year in and year out, through payroll deductions. The result has been a massive debt of unfunded obligations – made worse during the 2008-09 recession, although the parties dispute exactly how much of the problem is traceable to the recession, and how much to the State legislature’s failure to fund adequately.

On December 3, 2013, the State adopted a comprehensive reform package estimated to save the State around $160 billion over 30 years. The Act has at least five different features which everyone agreed amounted to a reduction in pension benefits. And that’s a problem, because Illinois has a Pension Protection Clause written into the state constitution: “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 the days and weeks following the enactment of the reform package, five lawsuits were filed challenging the Act. All five were consolidated in Sangamon County Circuit Court, and the Circuit Court ultimately struck down the statute in its entirety as a violation of the Pension Protection Clause.

So what can the data tell us about what we can expect at the oral argument on Wednesday?

Because the Circuit Court struck down a state statute, In re Pension Reform comes to the Supreme Court as a direct appeal. The Court has been quite skeptical of direct appeals since 2000. Although year-by-year data isn’t especially informative, since there are seldom more than three to six directs on the civil docket per year, the three-year floating average reversal rate on such cases by 2002 (in other words, data from 2000, 2001 and 2002) was 70% – much higher than the Court’s reversal rate on cases from the Appellate Court. After a one-year dip, that number went even higher later in the decade. By 2008, the Court’s three-year floating average reversal rate was 87.5%. Directs have become somewhat less common on the Court’s civil docket in recent years, but between 2010 and the end of 2014, the Court reversed in whole or in part in three of the four civil direct appeals it heard.

The Court has tended to be relatively skeptical of civil-law constitutional claims as well. Many of such claims come to the Court as direct appeals, so there is a certain amount of overlap between the data we’re now turning to and the data above, but the overlap isn’t perfect; the Court hears constitutional issues which arise from the Appellate Court as well. For most of the past fifteen years, constitutional cases have comprised between 7.5 and 10 percent of the Court’s civil docket.

The Court has taken cases roughly equally from both sides. Between 2000 and 2004, 45% of the constitutional law cases on the Court’s civil docket were defense wins at the Appellate Court, 55% were plaintiff’s wins. The reversal rate on defense wins was 44.4%, while 54.5% of plaintiff’s wins were reversed.

Between 2005 and 2009, 47.82% of the Court’s constitutional cases were defense wins, 52.18% plaintiff’s wins. 54.5% of defense wins were reversed at the Supreme Court, while 75% of plaintiff’s wins during those five years were.

For the final five years of our study period between 2010 and 2014, the constitutional docket was split half and half between defense and plaintiff’s wins. During this most recent period, only 14.3% of defense wins have been reversed, while 71.4% of plaintiff’s wins were reversed.

So what can we learn from the Court’s recent history with cases in this area of the law? The Court has decided eighteen cases in the last fifteen years relating to public employee pensions and benefits, beginning with Devoney v. The Retirement Board of the Policemen’s Annuity & Benefit Fund for the City of Chicago in April 2002. Half of those eighteen cases were won by the employer or pension/benefit board before the Appellate Court; half were won by the employee. The Court has reversed the employee wins in 55.6% of cases, but has reversed employer/pension board wins 66.7% of the time. Since this line of authorities began in 2002, a number of Justices voting on earlier cases have left the Court. But among the current seven members, only Justice Theis (71.4%) and Justice Kilbride (73.3%) have voted for the employee side more than fifty percent of the time. On the other hand, Justice Burke (63.6%) and Chief Justice Garman (52.9%) have voted for the employer/pension board side more than half the time. One might argue, then, that the ultimate result in In re Pension Reform will depend upon the three Justices – Justices Freeman, Thomas and Karmeier – who have split their votes evenly in previous cases between employees and employer/boards. Given that the Chief Justice is only slightly over a fifty-fifty split, this conclusion is consistent with our analysis of the Court’s civil caseload in general – the three Republican Justices often hold the balance of power.

A final comment leading up to Wednesday’s oral argument: watch carefully the number and content of the Justices’ questions. Although the Court hasn’t committed itself, the State has urged the Court to hand down a decision on or before May 31 – only eighty-one days after oral argument. Although the Court’s mean days under submission between oral argument and decision has dropped to between 100 and 110 in recent years in cases decided unanimously, cases decided with dissents have averaged 180 to 200 days under submission. Given the schedule, the Justices will likely take the bench on Wednesday afternoon with definite inclinations towards one side or the other. Although the Illinois Supreme Court tends to be what appellate lawyers call a “hot bench,” actively questioning both sides – and Wednesday afternoon’s argument is likely to be even more active than usual – a barrage of questions is typically not a good sign from the Court. Since 2008, losing appellants have received an average of 20.68 questions in civil cases to 15.58 for winning appellants. Losing appellees have averaged 15.96 questions during argument to 9.85 for winning appellees. In 2014, Chief Justice Garman and Justices Burke, Freeman and Theis each asked more questions of the appellants when they ultimately voted to affirm. Justices Burke, Thomas and Theis all averaged more questions to appellees whom they ultimately voted against.

If you’d like to catch up on the history of the In re Pension Reform litigation leading up to Wednesday’s argument, here’s a guide to our posts over at The Appellate Strategist:

The Pension Case: The State’s Reply Brief

The Illinois Pension Plaintiffs’ Brief: The Cause of State Underfunding, and The Constitutional Convention Revisited

Pensions at the Constitutional Convention, Part III: The Opponents and the Vote

Pensions at the Constitutional Convention, Part II: The Clause is Introduced

Pensions at the Constitutional Convention, Part I: The New Jersey Spina Decision

State’s Defense of Pension Reform: Constitutional Convention Couldn’t Make Pension Protection Absolute (Even If It Wanted To)

Illinois Supreme Court Denies All Ten Amici Requests in Support of State in Pension Appeal

Illinois Supreme Court Adopts Accelerated Schedule for Pension Law Appeal

What the Pension Reform Decision in Arizona May Mean for Illinois

Image courtesy of Flickr by Jim Bowen (no changes).