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GROSSMAN v. GILCHRIST

May 27, 1981

RICHARD GROSSMAN AND ROBERT BIEDERMAN ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
JOHN GILCHRIST, ROLAND BURRIS, NORMAN L. RYAN, JOSEPH T. PISANO, AND ROBERT MANDEVILLE, MEMBERS OF THE BOARD OF TRUSTEES OF THE STATE EMPLOYMENT RETIREMENT SYSTEM OF ILLINOIS, AND MICHAEL L. MORY, EXECUTIVE SECRETARY FOR THE STATE EMPLOYEES RETIREMENT SYSTEM OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Leighton, District Judge.

Memorandum

This is a civil action brought under 42 U.S.C. § 1983 by a State of Illinois employee to challenge the constitutionality of the compulsory requirements of the Illinois employees' retirement system. The cause is before the court on defendants' motion to dismiss. For the reasons hereafter stated, this court concludes that plaintiff's complaint fails to state a claim on which relief can be granted; therefore, the motion is granted. His allegations, construed in a light most favorable to him, show the following.

I

Plaintiff Richard Grossman is employed by the State of Illinois as a Special Assistant Attorney General. Under Illinois law, he is required to participate in a pension plan known as the State Employees Retirement System of Illinois (hereinafter referred to as "SERSI"), and has involuntarily contributed at least $1,200 to the system.*fn1 Defendants Gilchrist, Burris, Ryan, Pisano, and Mandeville are members of the SERSI Board of Trustees, a state administrative body, and as such are charged with the responsibility of "directing the affairs of the system" in accordance with Ill.Rev.Stat. ch. 108 1/2, § 14-103.02. Defendant Mory is Executive Director of SERSI, and as such is responsible for the "administration of the detailed affairs of the system" pursuant to Ill.Rev.Stat. ch. 108 1/2, § 14-136.

Plaintiff claims that he does not now, nor did he ever, desire to be a participant in this or any other pension system. This court notes that his claim is novel in two ways: first, compulsory participation by State of Illinois employees in SERSI has never been challenged in the courts since its adoption by the legislature in 1943; and second, plaintiff's complaint asks this court to recognize that the Ninth Amendment to the United States Constitution was intended in part to protect a heretofore unrecognized fundamental right to spend money that one earns in any way which is not otherwise illegal. The parties' arguments are addressed below in detail.

Plaintiff's complaint specifically charges that compulsory participation in SERSI, with no option to decline or withdraw, imposed by Illinois statutes on all but certain specifically excluded employees, is unconstitutional, in that the statutes:

  [V]iolate the Ninth Amendment to the Constitution of
  the United States in that they unconstitutionally
  infringe on a fundamental right retained by the
  people, namely the right to spend the money one earns
  in any way which is not otherwise illegal;
  They deprive the individual Plaintiffs of `property
  without due process of law . . .' in contravention to
  the Fourteenth Amendment to the Constitution of the
  United States, in that the State of Illinois
  requires, as a condition of employment, that state
  employees forego their fundamental constitutional
  right to spend the money that they earn in any way
  they see fit which is not otherwise illegal;
  The said statutes violate the Equal Protection Clause
  of the Fourteenth Amendment to the Constitution of
  the United States in that:
    While Plaintiffs and other members of the class are
    forced to contribute a certain amount of their pay
    each week to retirement systems they do not wish to
    be members of, certain other state employees are
    entitled to choose whether they will participate in
    any retirement system.
  These statutes thus invidiously discriminate against
  Plaintiff and members of the class by setting up one
  class of persons required to sacrifice their
  fundamental constitutional rights as a condition of
  employment, and a separate class of persons allowed
  free exercise of their fundamental constitutional
  rights during employment.

The alleged class of persons sought to be represented by plaintiff includes all persons who have been, are presently being, or will in the future be required to contribute to a state administered retirement system as a condition of employment with the state. Since no motion for certification is before the court, the viability of proceeding with such a proposed class is not addressed.

In support of their motion to dismiss, defendants argue that plaintiff, a lawyer, had knowingly waived any right to present enjoyment of his contributions to SERSI upon entry into service for the State of Illinois. Defendants also urge this court to reject any Ninth Amendment claim on the ground that the United States Supreme Court has never outlined the scope of protection guaranteed therein. According to defendants, plaintiff's due process claim fails because no property interest is present, either by way of the Constitution or state law. They also argue that no claim under the equal protection clause of the Fourteenth Amendment is made out, because the state has ample justification for distinguishing between classes of state employees for purposes of participation in SERSI.

In opposition to defendants' motion to dismiss, plaintiff concedes that the Supreme Court has never adopted a specific formula for identifying rights protected by the Ninth Amendment; nevertheless, he urges this court to recognize the right he seeks to assert here as protected thereunder. In support, he argues that his "right to spend money" should be included within the broader fundamental right of personal privacy. According to the plaintiff, the notion of personal privacy encompasses individual freedom of choice and personal autonomy; if liberty means anything at all, it means that an individual is entitled to choose for himself how best to order the personal details of his existence. Plaintiff's Memorandum in Opposition, p. 5. Quoting from Roe v. Wade, 410 U.S. 113, 211-12, 93 S.Ct. 705, 757, 35 L.Ed.2d 147 (1973) (Douglas, J., concurring), he notes that "the autonomous control over the development and expression of one's intellect, interests, tastes, and personality" is an aspect of the right of privacy, "retained by the people" within the meaning of the Ninth Amendment. Accordingly, plaintiff urges that the right to spend the money one earns in any way ...


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