I simply don’t understand how this is legal:
Judges in Colorado and Minnesota have dismissed court challenges by retired public workers whose pensions had been cut — developments that may embolden other states and cities to use pension reductions as a tool to help balance their budgets.
The two lawsuits sought to reverse reductions in the cost-of-living adjustments that Colorado and Minnesota had previously promised to retired public workers. Generally speaking, once lawmakers have agreed to provide certain pension benefits to public workers, it is difficult, if not impossible, to roll them back because of protective language in state laws and constitutions and years of court interpretations.
Public pensions are considered so bulletproof that when the city of Vallejo, Calif., recently restructured its finances in bankruptcy, it cut other costs but left worker pensions intact.
The two court decisions, issued Wednesday, suggest that the legal tide may be changing for public pensioners. The political tide has already turned in some places — in addition to Colorado and Minnesota, South Dakota and New Jersey have also cut cost-of-living benefits for current retirees, and other states have been awaiting legal guidance before doing the same.
In their court filings, retirees in Colorado and Minnesota had argued that their benefits were contractual in nature, and therefore protected by state and federal constitutional language barring the impairment of contracts.
However, in his ruling dismissing the Minnesota case, Judge Gregg E. Johnson of the state’s Second Judicial District Court wrote that the retirees in that state “have not met their burden to show unconstitutionality beyond a reasonable doubt.”
Look, I am very sensitive to the argument that some of the pensions promised to people were unreasonable- we have all heard the stories of people retiring at 50 and drawing ridiculous pensions for 20-30 years. The solution to that, though, is to not make those promises to current and new workers. But it is simply beyond my understanding how you can agree to a contract, the worker defers salary and income for the promise of a pension that both parties agree upon, and then, after the worker has fulfilled his end of the bargain, you simply say “Fuck it, your pension costs too much and we can’t get our house in order and our Galtian overlords don’t want to pay taxes. Eat a bag of dicks, old man.” Because that is what is happening.
What are these retirees, who made financial decisions their entire lives, supposed to do? If you thought for 40 years as you worked that you had X amount of money coming in retirement, it would substantially change your investment strategy and portfolio. You can’t recover when the government just yanks it all away. You don’t get a do-over to go back and invest more.
This is just insane.
JPL
What John said.
Cat Lady
Shorter Galtians to everyone: IGMFY.
Lysana
Yes. And so when do we start spraying the red states with airborne anti-psychotic meds? Armchair psychiatrist accusations be damned, there must be some cure!
Omnes Omnibus
The only thing that would make any sense to me about dismissing these particular law suits is if there was some technical flaw in the pleadings, if the lawyers had failed to raise certain arguments that were necessary, or some such thing. If something like that happened, this would not be a significant harbinger of doom, but, absent that, this is worrisome.
Johannes
FWIW, the judge’s reasoning seems–off–to me. The use of “reasonable doubt” in a civil case in the snippet you quote is just weird. I’ve never seen that term used in analyzing a constitutional claim except as to whether a criminal conviction met that constitutionally required standard. (I suppose Minnesota could have imported that as the standard in state constitutional challenges, but I’ve never heard of such a thing). It’s possible that this could get overturned.
beergoggles
These aren’t the state supreme courts are they?
Mark S.
Is that really the standard? Or is this some injunction part of the trial?
ETA: What Johannes said.
Linda Featheringill
This is very scary.
I wonder if private sector pensions could be messed with in the same way?
[And the revolution will be fought by old folks?]
Omnes Omnibus
Johannes has a good very good point. “Beyond a reasonable doubt” is not a legal standard that I have ever seen used outside of a criminal case. This could well be wing-nut state trial court judges getting their freak on only to be slapped back to reality by an appellate court.
mk387
Imagine the outrage in the media, GOP and the courts, if the gov’t broke a contract with a large corporation.
The problem is more that workers don’t have solid representation in gov’ts or in the courts.
Kathleen
This may be an apples to oranges comparison, but I believe airlines set the precedent when they were allowed to void contracts with their workers.
WereBear
And here I thought contracts were sacred.
ruemara
It’s perfectly legal when you control the judges. Or, as I’ve said to liberals for nearly a decade, you sat back and ignored local races for decades and you wonder why rulings like this happen? It will have to go to a higher court. And they’re already coming for my pension. In fact, my hippiedippie town full of liberals have people in charge who would positively salivate at the prospect of being able to break our pension agreements. Hell, they’d be flirtatiously interested in Wisconsin’s sexy little union busting bill. Bipartisan curious indeed.
DecidedFenceSitter
@Linda at 8:
Can they? They are, regularly and fairly easily and have been for years – easier for a business because they just declare bankruptcy, restructure obligations, dump the pension onto the PBGC at the cost of pennies on the dollar to US taxpayers and then emerge from bankruptcy.
mr. whipple
Um, no. If the negotiated benefit was agreed to- most often as an incentive to accept lower wgaes and bennies at the time- then they were not in any way ‘unreasonable’.
It’s a freaking contract. Public employees bargained for them, and the other side agreed to it. End of story. If it was such a sweet deal, anyone had the ability to flock to the public sector.
jo6pac
Correct Decided and it’s just the beginning of the new Amerika Shock Doctrine for all but chosen few.
Zifnab
You already answered that question.
Laws are for little people. In crisis situations (and every situation is now a crisis situation), we do what we fucking want.
Dave
I would assume these rulings can be appealed, right? The “Second Judicial District Court” doesn’t sound like the court of last resort.
Halcyan
Not sure that these are all that dispositive. These are trial court rulings, not appellate rulings. And as someone else pointed out, it is possible that there was some flaw in the filings. And, also too as well, there is a difference in adjusting the COLA but not the base pension.
It is certainly not decided yet. But there is a lot of pressure, albeit coming from the Galtian Overlords, of course, for those working for public enterprise to resent those working in civil service of some sort their retirement and benefit packages.
If the G.O. can keep us minions squabbling amongst ourselves, we are less likely to realize exactly what they have done to us.
JohnR
“This is just insane.”
Only in a rational world. In our world, it’s the Golden Rule in action. Who has the gold, makes the rules.
WereBear
Like the military? Of course, some of them get shot at; but they also get healthcare.
And if you are a public servant in NYC, you also get shot at.
Fucen Pneumatic Fuck Wrench Tarmal
so would it be constitutional to make judges, tax accessors etc, independent contractors who don’t get a salary, but just work for tips? maybe they have to cash out the baliffs and the court reporter, the people who write their briefs?
if wouldn’t be more just, but at least it would be honest work.
JGabriel
What the holy living fuck does that even mean?
Constitutionality isn’t a question of fact — i.e., it’s not a question of reasonable doubt about the facts of a case or a defendant’s guilt; it’s a question of law and interpretation.
Fucking idiot. Is he really that stupid, or just trying to avoid responsibility for his decision?
.
Zifnab
Almost makes you wonder why we have private pensions at all, if they’re just piggy banks that a corporation can raid at its leisure. Why not have some sort of national pension system that everyone buys into? Oh, wait. That’s Social Security. And the Republicans are trying to raid that piggy bank too.
I guess nothing is sacred and its every man for himself.
TooManyJens
John, your problem is that you think workers are people. As we all know, corporations are people. Workers are just numbers on a balance sheet that need to be minimized or preferably eliminated.
Montysano
Along the same lines, it infuriates me to hear SS and Medicare referred to as “entitlements”. I started working at age 13 in 1968 and have been deferring income ever since.
TJ
Heh. Don’t you know contracts are inviolate only if you’re a bankster?
Besides, seniors never join a revolution. They’re too old.
Tim Connor
This has been happening to non-public workers for over a decade. Where was your outrage then?
Stealing pensions has been the game plan for a long time, and people kept voting Republican. Now they have reaped the whirlwind.
There is a simple solution to this and many other ills. Quit voting Republican.
arguingwithsignposts
See, e.g., Greece.
Cacti
“To show unconstitutionality beyond a reasonable doubt”
Sounds like a burden of proof that his honor the judge invented from whole cloth.
The “reasonable doubt” burden belongs exclusively to the State when seeking a criminal conviction.
Frapalinger
Why is everyone here surprised? The wealthy in this country will not stop attacking every entitlement, every regulation, and every union until they have driven wages down to be on par with the lowest ones on the planet. They have been at this for 30-40 years.
Vishnu Schist
Well in the first place these are scum sucking public workers and who gives a shit about those lazy assholes. I mean it’s not like they were out creating blue steel or writing fantasy snuff novels where heros kill all public workers by running them over with trains and stabbing them with architect’s drafting supplies. Why should these clowns who obviously sucked the public teet for their “work” careers expect anything? If they had any ambition they would have been placing bets on the whole economy taking a huge dump then cashing in, or holding a gun to said workers head to ensure payment, metaphorically of course. Coffee is for closers pal, the others get the steak knives and the public workers get the door. All the Tea Party m’fers who come from the baby boom, the most government subsidized generation evah, have no interest in paying these soggy eyed workers their due, it is called payback for electing the first black man to the presidency. As we know there’s no one more righteous than whore who’s seen the light, the baby boomers now realize their greed is unsustainable, at least for others, they are still quite happy to take the cash off the nightstand though.
AAA Bonds
When considering how the rich have screwed pensioners and the rest of us to build their edifices of shit, I always like to consult the Good Book, Acts 1:18:
I’d like to spray paint that six feet tall on 23 Wall Street, over the pits from the 1920 bombing that still mark its wall.
You know, just to remind people of the options available to us.
burnspbesq
What Johannes said. This case is going to be vacated by the appellate court, and remanded for reconsideration under the correct legal standard.
stuckinred
AAA Bonds
Pulp Fiction?
balconesfault
What are they supposed to do?
Get rich, of course. Then these pensions lost would be a fraction of the massive savings in taxes that the last few decades worth of GOP domination of the political process have given us.
Seriously. You don’t like getting screwed by the rich? Then quit whining and get rich yourself.
What else did people expect as the GOP cut any moors it had with reality during the Reagan era, and started drifting ever the more rightward?
cbear
That’s all very interesting, Cole, but it’s Day 44 of the Casey “the killer mom” Anthony trial and I think we need an open thread to discuss the latest developments.
Kathleen
@Montysano 26: I agree! When we the great unwashed are involved, the operative Village talking point term is “Entitlement”. Like we haven’t been putting money in Social Security and Medicare. On the other hand, we Americans have allowed the corporations, organized religion, politicians and the media to brainwash us into thinking we don’t deserve anything except whatever crumbs the powers that be deign to throw our way. We’ve done this to ourselves.
General Stuck
The republicans and some democrats have launched a major offensive in the class warfare department, not only against the middle class and poor, but 70 years of progressive ideals since the GD. And they rationalize it to tell themselves that they must protect the money side first and foremost, over the individual or collective demand side of the market equation.
And when you think about it, it all is really a self contained juggernaut that has been slowly occurring at least since Reagan. Or, installing policies that are anti competitive, anti free market and pro unlimited profit. Then when it crashes down for obvious reasons of promoting supply side only, they declare it an existential emergency, and blame liberalism and liberals, and go about targeting the sweat equity workers toiled for the machine, in the form of pensions and entitlements, even ones that obviously have nothing to do with our current econ problems like SS.
It’s sort of like economic terrorism directed at the populace, whereas the terrorist sets off a money scam bomb, and then when people gather to help the victims, a secondary money bomb goes off, etc etc.
And in the melee, the plutocrats and their foot servants too, make off with the lake of middle class money, all in service to saving the realm. While the propagandists blare how liberalism and progressive policies are all to blame.
It will be a race against the clock, between the greed merchants and at what point average citizens figure out in high enough numbers what is happening to them. Though my guess is, those people will just blame Obama, cause that is easy to do.
AAA Bonds
Well, that’s all right.
Conservative judges and wealthy financiers have breached their social contract with the rest of us.
So, we shouldn’t feel any obligation to perform our end of it, you know, the part where we protect their homes and offices from their angry victims.
AAA Bonds
@General Stuck:
Agreed. It’s high time the poor and middle class answered back with a little class warfare of our own.
All that’s really available to us is asymmetrical warfare, but the good part is that we have some good tactical examples in our government’s hand-picked “enemies” abroad.
BGK
Aren’t the elderly supposed to be a rock-solid part of the Republican base? Aside from a naked upwards-wealth-transfer, I can’t see the upside for conservatives here. Are they really getting that blatant?
In semi-related news, here in retiree-heavy southwest Florida, we’re starting to get carpet bombed already with Crossroads GPS-sponsored ads about how bad the Obama recovery is, and also the one with the Very Serious Paul Ryan telling us how his budget will save Medicare. The former I get, but the latter just seems radioactive in this market…
Glen Tomkins
Great White Father Speak with Forked Tongue
Which is a pretty good way of phrasing the concept of sovereign immunity, from the point of view of its victims.
The cited NYT article doesn’t explain the rationale for these decisions in enough detail to judge whether the principle was behind these particular rulings, but in general sovereign immunity is the rationale for why govts are allowed to do all sorts of things, including welch on contracts, that other entities are not allowed to do with impunity.
The idea would go something like this in the case of a govt running out of money. The govt, unlike any private corporation, has to continue in existence because it has responsibilities that can be fulfilled by no other entity. It can’t go out of existence by way of the bankruptcy that is open to private entities. If it finds itself short of funds, it has to have the freedom of action to welch on whatever obligations it feels necessary to welch on in order to be able to still meet obligations that are more needful.
What’s shocking in this situation is not that govt can break contracts that would bind other entities, that the courts recognize such a power in govt and are deferential to the democratically elected branches of govt in their determination that the govt in question has indeed reached that point of being compelled to welch on some obligations in order to survive. What I find shocking is that the democratically elected govts of CO and MN, and of the US, have decided that we have reached that point of having no alernative but to welch on their contracts with govt workers. Of course we haven’t reached such a point. We live in the richest and most productive society the planet has ever seen. Of course there are enough resources at the command of govt at all levels to meet all govt obligations.
The phony debt crisis in which we find ourselves is 100% self-imposed. Govt at all levels in this country has chosen to starve itself, has chosen to leave on the table zillions in readily taxable wealth, wealth that can be taxed with little to no adverse effect on either the economy or on any individual’s freedom. That choice should attract all the outrage here.
AAA Bonds
@stuckinred:
Well, that’s Luke on Judas Iscariot, but it does have that Tarantino atmosphere, doesn’t it?
I can’t really think of a better metaphor for botoxed Wall Streeters screwing widows and orphans to buy 72′ yachts than the man who invited his own death by selling out justice and compassion for a bag of silver.
Personally, I always thought it deliciously suspicious that the stories of Judas’s demise don’t match up. Oh, yeah, he hung himself on his just-purchased property . . . sur-r-r-r-re . . . or maybe the Apostles were just that good.
“He just fell and all his guts popped out, officer! The darndest thing!”
KyCole
I wish we could have a discussion about this without somebody saying “fuck the boomers” every time. I’m one- born in 1957 and I never had a fucking pension plan. My now ex-husband and I own a small business, pay our taxes and our employees, but sometimes not ourselves. Now if you want to talk about who’s really rolling in it- talk to my parents. Between them they have four government pensions, health care because they worked for the government and SS. Oh and they’re Republicans. Plus they have some nice savings after my Grandmother died and left them a nice chunk of change.
martha
Tim @ 28: Exactly. Very few people (well, more than that) shrieked and tore their hair out when all those steel workers lost their pensions when all those gaultian overlords bought their companies and liquidated them 20 years ago. Certainly not all those smug public workers. No, it was never going to happen to them because they had made different choices in their life…they went to work for the public sector and they were protected blah blah blah. Well, now the gaultian overlords are on their doorstep.
jon
My great aunt worked for over forty years in Wisconsin at a state job as a secretary. She retired at 89. The pension payments were determined by her age (using actuarial tables) and the money she put in (using simple math.) She now makes four times what she used to make working, which sounds outrageous when she’s collecting $11,000 checks each month. But if she died at 91, she wouldn’t have gotten her money’s worth. I don’t know where the tipping point is, but I’m not sure she’s reached it yet.
This was agreed to, and if those people fuck with her they’re going to be treated like the gophers in her garden. Fucking rodents won’t have a chance.
And speaking of rodents…
General Stuck
Yes, they are. And that is what is different this time. There is a sense of desperation in what they are doing, seems to me, which is basically what they’ve been doing all along, but without the usual trepidations of pissing too many voters off in too short a period of time, especially their own amongst the middle class.
It is like an ideological panic attack that seems to keep building as we go on. And every time they see Obama’s black face in THEIR White House, they get a little more desperate and uninhibited going about their looting of public money, even fucking pensions that also include those of republicans.
My guess is, in the backs of their minds, if they can’t be white and supreme in THEIR country, they will destroy the motherfucker and takes their chances from that jumping off place.
Davis X. Machina
In the First Circuit, at least, public employee pension plans aren’t considered contracts, and the state can unilaterally change their provisions even for vested workers.
Parker v. Wakelin, 1997
The Supremes refused to hear an appeal.
stuckinred
KyCole
I hear ya, the “The Greatest Generation” cooked the books big time.
eemom
this is absurd. The responsible thing for non-public employees to do when public pensions get too high is move to Canada.
AAA Bonds
@martha:
LOL, you don’t know shit, do you?
Do you really think public workers, who were in the midst of their own drive to organize at the time, responded to the screw-the-workers policies of those years POSITIVELY?
You are a real fuckhead.
Mr. Stagger Lee
Hey cbear! The NFL talks may be collapsing, this is crisis that needs the attention that we can’t waste on some insignificant street sweeper, cop, firefighter, or DMV clerk.
(*snark for the challenged)
Oh BTW if we are going to screw people out of their pensions can we screw those judges too?
David Fud
Bags of dicks are very nutritious and very cheap. Old men should eat at least a bag of dicks every day as part of their overall nutrition plan, because cans of cat food could break their teeth (at least, whatever teeth they have left).
In fact, if old men started to eat bags of dicks more regularly, they would have better bowel health and be able to contribute to the tax base of the state with the money they get for eating bags of dicks. If they incorporate and patent their bag-of-dicks eating process, they could get very wealthy and live the Galtian dream of being kicked to the curb, and subsequently regaining their self-respect through bag-of-dick eating.
It is fiendishly subtle, this bag-of-dicks plan, but it has its merits. We will soon all live in Galtain paradise, waiting in line for our chance to eat bags of dicks like the old men, and we will feel lucky and happy to get our chance at a bag of dicks. Better a bag of dicks than nothing.
Montysano
@ General Stuck
I think this is right. The GOP must know that demographically, they’re doomed. So it’s time to go all in, to swing for the fences, and to do it right in our faces. The fact that there’s relatively little outrage must come as a pleasant surprise.
MomSense
Just wanted to remind folks that in many states, state employees only receive their pensions and do not receive Social Security. Their state pension is their safety net, period.
These employees pay into the state retirement system and not Social Security. They earned these benefits, in many cases forgoing the higher pay for comparable credentials and experience that they would earn in the private sector. They often do not get raises and bargain for better retirement benefits instead.
It really is an outrage.
arguingwithsignposts
@martha and @Tim – this kind of in-fighting is exactly what the Galtian Overlords want. Divide and Conquer. How about we stop the bleeding where we can and work toward healing the private sector pension system as well?
BGK
@General Stuck:
I always took for granted that the coming demographic wave was why the Teatards were losing their individual and collective minds. The real Galtians always seemed so secure and comfortable with the idea that they really ran the show that they never got that exercised, except for a little theater to stoke up the rubes.
Maybe they’re just getting impatient with this plutonomy-by-degrees stuff and want it all now?
General Stuck
A question for our legal eagles
Is it correct to apply a ‘beyond a reasonable doubt’ standard for civil law, which I would think this falls under, not criminal standards for proof of guilt. Which for civil cases usually is the prima facea standard. or probably guilty?
martha
AAA bonds…yes I am probably a fuckhead. But, a lot of private sector workers have already been down this road and lost it all, not just a cost of living adjustment. Is it right? Of course not.
The Moar You Know
Kathleen: You are correct. Both my father and my father-in-law were US Airways pilots, and they got their pension funds zeroed. The company used them to fund operating expenses while taking all revenues and distributing them to management and shareholders, and then declared bankruptcy, leaving the pilots holding the bag.
There was no sanction whatsoever from any legal or regulatory body for this action.
Sorry for everyone who is dealing with it now. I’ve been dealing with the fallout for the last ten years. It is not pretty.
Davis X. Machina
I worked for a decade and a half before becoming a non-SS-contributing public worker. My SS benefits based on that employment will be reduced by about 2/3rds. And any spousal/survivor benefits I receive upon the decease of my SS-contributing wife will be reduced to zero.
martha
And by the way, I’m one of those much vaunted small business owners. I will never have a pension of any type. I’m responsible for whatever I save and I’m responsible for my employees’ 401K plan. And I’m responsible for their health coverage as well. And I’m responsible for keeping them paid every two weeks.
So yes, I’m a fuckhead who knows shit about how this economy really works.
Brachiator
So, would it be acceptable to cut services, including social safety net spending, in order to maintain pensions? And even if you reasonably raise taxes, especially taxes on the rich, do you try to prioritize spending? And what do you do if you leave current pensions intact, cut them for future employees, and still find that you have a budget shortfall? And how is it fair to have new employees paid less (including benefits) to do the same work as older workers?
There were news stories suggesting that Vallejo would have been better off negotiating rather than filing bankruptcy, but still there is this:
Aside from the supposed sanctity of contracts, what sense does it make to have labor costs exceed the entire general revenue fund?
And for the record, as part of the negotiations for the massive financial bailout, banisters should have been forced to make big concessions on salaries, and forego all bonuses, contracts be damned.
Davis X. Machina
Crab-bucket syndrome. I bet you could base a whole political party on it…
I'mNotSureWhoIWantToBeYet
@ Glen – This.
Well said.
Cheers,
Scott.
Villago Delenda Est
The rules that apply to the proles do not apply to Ferengi/Galtian overlords. Surely you knew that?
Glen Tomkins
@59
Let’s wait for the legal eagles, of which I am not one, for something definitive on that, which I also found peculiar.
But, just from general principles and lay knowledge, there are different standards of proof that parties have to meet in different situations, and differences beside the criminal/civil distinction that you mention are included in these different situations.
I suspect that there is a high burden placed on any plaintiff seeking to second-guess the judgment of the MN legislature on what is and isn’t constitutional in MN. If the MN legislature says it has no other choice but to cut pensions to avoid fiscal catastrophe, MN courts are likely bound, unless a plaintiff can make an absolutely airtight case of unconstitutionality, to defer to that judgment of the democratically elected branch about a fiscal matter, and about the rights of pensioners, faulty as you or I might find the legislature’s takes on both those issues.
Zach
The best evidence that the Koch-backed libertarian outfits aren’t ultimately interested in individual liberty is how they loathe contracts promising pensions and want laws stopping people from making contracts that allow unions to exist. You can’t have property rights without a functioning legal system and contracts are key there.
Also, this is something to bring up when anyone says public unions have too much power because they’re funded by the same folks they spend money electing. A private union’s contract is protected, to some degree, by labor law (even if the law tilts towards management). A public union can be shafted at any time by legislative fiat, yet still be constrained by laws preventing walk-outs, etc.
Jim Pharo
“This is just insane.”
Yes, our current predicament is quite serious. And?
arguingwithsignposts
I think the real issue here, both public and private, is that owners/politicians haven’t been properly funding the pension plans for years, instead using the funds for short-term measures to put off things they don’t want to do – like raise taxes or whatever.
Neither public nor private workers got the companies/governments into the pension messes they’re in, yet the workers are expected to take the pain, see e.g., Greece.
artem1s
Oh BTW if we are going to screw people out of their pensions can we screw those
judgesCEOs and directors at Goldman Sachs out of their golden parachutes too?arguingwithsignposts
@martha
Just out of curiosity, do small business owners contribute to their own social security?
AAA Bonds
@martha:
LOL, can’t quite grasp it, can you?
When you make up fairy stories about “smug public workers” who supposedly didn’t care about the anti-worker movement in this country IN THE MIDDLE OF THEIR DRIVE TO ORGANIZE, you’re just parroting the lines of those Galtian overlords.
You divide, they conquer. Neat, isn’t it?
Could be you’re their willing agent, or you’ve been duped. Either way, you’re here to do their dirty work. Right now, with all that “rugged American” nonsense you’re spewing, I’m leaning toward “paid Koch Internet operative”.
Anyway, you’re giving all the folks here an idea of what their enemy sounds like, so that’s a net gain. The market works!
eemom
Not an expert on Minnesota law, but I have never heard of “beyond a reasonable doubt” being a standard of proof in a non-criminal case.
And it makes no sense at all in this context, because that is a standard for measuring evidence. Unconstitutionality is a legal issue, not a question of fact to be determined by weighing the evidence.
And using this as a standard to dismiss a complaint before the case has even gone anywhere makes even LESS sense.
Judges can be ignorant fucking morons just like anybody else — particularly state trial judges who are on the lowest rung of the judicial ladder. Fuck this asshole.
AAA Bonds
@arguingwithsignposts:
You think right. That’s exactly what happened.
AAA Bonds
@eemom:
Also 100% correct. Judges are lawyers (and sometimes not even that) who are good at politicking, not good at reasoning. Tons of decisions like this get overturned because even with a galley of white-collar slaves doing research, the judge simply doesn’t know the law or how it works.
Clarence Thomas is the best example of this. See his recent idiot dissent on the video game case, where he can’t actually produce any precedent whatsoever.
The Moar You Know
They have. It’s known as the Geee-ohhhh-pee, son.
Anonymous At Work
“Beyond a reasonable doubt” is only used in criminal law context and only after a trial. That standard is NEVER used in summary judgement motions. The MN case presents a good challenge for retirees and frankly, I’d not be surprised if the appeals courts slapped the opinion around if it’s overturned, or came up with an entirely new line of reasoning if the opinion is upheld.
The Colorado case seems like the one to watch because the ruling could hinge on interpretation of contractual language, which would fall back to common understanding at the time the contract was created. The Colorado judge could be filling in for a blank provision (bad for retirees) or could be re-interpreting settled language (bad for judge, good for retirees). On the face of what NYT presented, though, the ruling doesn’t seem illogical.
Mnemosyne
It’s so weird how conservatives have made up their own personal definition of “entitled” that doesn’t, you know, actually exist:
en·ti·tle
verb /enˈtītl/
entitled, past participle; entitled, past tense; entitles, 3rd person singular present; entitling, present participle
1. Give (someone) a legal right or a just claim to receive or do something
* – employees are normally entitled to severance pay
* – the landlord is entitled to require references
2. Give (something, esp. a text or work of art) a particular title
* – an article entitled “The Harried Society.”
3. Give (someone) a specified title expressing their rank, office, or character
* – they entitled him Sultan
Funny how there’s nothing there about receiving something you don’t have a right to, innit?
fuzz
In NJ there’s a problem though with people collecting 2 pensions, one from their real state job and another from what was basically a part time barely above no show job. Some of these plans (such as for state troopers) also cover their spouses and children’s healthcare, even if their kids are grown and their spouses have their own jobs and coverage. There was a school administrator in a town near me that took a 500k retirement package and she was in her 50s, she might as well have won the lottery (and I can’t imagine what she was doing because the district she worked for has been terrible for 30 yrs).
Taking away a pension from someone who already earned it is terrible but at least in NJ there do need to be some negotiations on this. Even democratic state reps and senators agree, they just don’t like the way Christie is shoving it down everyone’s throat.
Susan of Texas
Of course they’re coming for the pensions. That’s where the money is. The elite have been stealing money for a long time. The courts have been backing them up for a long time. The time to get worried about this is long past. It is too late. We wouldn’t fight when they were gaining this power and now they have it and they are too powerful to fight. Our laws exist to give the rich cover for their theft and that was achieved with both Republican and Democratic presidents leading the country.
What are these retirees, who made financial decisions their entire lives, supposed to do?
Shut up and go away and die.
They’re fucked–we’re fucked and nobody cares. And I guarantee you, half the people out there, the same people getting their pensions and SS gutted, will fight tooth and nail to support the people who are slitting their bellies open and watching their lives spill out into the dirt. They will never, ever accept that their leaders exploit them, or their priests preyed on their children, or their parents were selfish fucks who abused them, or that rich people enjoy fucking them over and having control over whether they live or die.
The rich are a global phenomenon. Their customers come from all over the world. So do their workers. Why should Americans be paid better than Indians? They’re all just workers. Why should their living conditions be better? Why should citizens of the world care about what happens in one corner of it over another corner?
Why should workers have pensions? That money is just sitting there doing nothing. It could be put to work to “create new jobs” and “increase liquidity.” Why should the Baby Boomers have Social Security? It’s “theft from younger generations” and “redistribution of private property.” Why shouldn’t Americans have a lower standard of living? Even their poor are rich, compared to other countries. They have flat screen tvs and air conditioning and cars!
Sacrifice will be good for them. It will return them to more moral times and bring communities closer together, like it used to be in the good old days.
It’s for their own good.
The Moar You Know
arguingwithsignposts: As a small business owner, let me reassure you that we most assuredly do. The only people that don’t are railway workers (who have their own, separate setup) and teachers, who get pensions or nothing.
martha
arguingwithsignposts: absolutely, as an owner, I contribute to SS benefits. So yes, I do qualify for SS. But I don’t assume that’s there as a “pension”…which is probably a good assumption based on how things are going.
drkrick
Wasn’t an awful lot of Mitt Romney’s “business success” at Bain Capital based on draining the pension funds of the takeover targets before selling the remnants on to someone else? Seems like “these people are trying to steal your retirement any way they can” is a sellable meme is anyone cared to try.
Xenos
The only way to make that stick, I am afraid, involves a fair bit of target class warfare. Not the sort of thing anyone wants to see, but I am very surprised that we have not seen it yet.
We have not seen a new round of people going postal, but if I were one of those airline executives taking a large bonus for wiping out the pensions of thousands, a fair bit of that bonus would be spent on armored cars, bullet-proof vests, and the like.
gene108
Only if you work on Wall Street and are expecting a huge bonus, regardless of how badly the overall investment strategies of your employer destroyed the global economy.
For everyone else, contracts are just a bunch of Mad-Libs, where you keep editing it until the guy holding the purse strings gets the result he wants.
Michael E Sullivan
I can understand why this could potentially be legal as part of a bankruptcy proceeding. Just because you are under contract or owed money doesn’t mean you are guaranteed that money if the entity promising it to you goes bankrupt.
But the pool of money available to pay pensioners should be sacrosanct even in bankruptcy proceedings, so the worst case should be that some *small* level of underfunding leads to minor cuts in what is payable, and even this should happen only when the entity that promised the pension originally is bankrupt or otherwise under some kind of receivership or resolution authority.
Very severe underfunding should normally be punishable as fraud (if not enough was ever put in), or breach of fiduciary responsibility (if it was all invested with Bernie Madoff or something).
I’m completely outraged.
Davis X. Machina
@ fuzz: I thought burning down the barn to get the rats was frowned upon in modern pest-control theory.
Susan of Texas
Remember how Glenn Greenwald kept saying that if laws don’t apply to every person they apply to nobody? Remember how tired everyone was of boring old windbag Greenwald and his shrillness? He pointed out every precedent to something like this, told everyone that things like this were inevitable, and everyone just sneered becauese they didn’t want to admit that Obama was lawless.
Spare us the outrage. Most people wanted this situation, fought for it, donated money to campaigns to make it happen. Well, here it is. You got what you wanted.
Yes, God forbid we sully our hands with class warfare. We will just be its victims, which is so much better.
The people willing to wage class warfare were shouted down by the same people now outraged by pension theft.
I can’t wait for the election, in which every one of these people will turn around and say that we must submit and support Obama no matter what, or Sarah Palin will be president and impose a Christian Sharia on us.
But don’t worry, I’m not talking about you. I’m just talking about everyone else. They are to blame, not you.
Meanwhile, I’ll go back to reading Megan McArdle, who is telling us on twitter that teachers should be paid minimum wage. And because she is backed by the rich she will get her way and we’ll just sit open-mouthed in disbelief as even more of our world crumbles around us.
The Moar You Know
Michael E Sullivan: But it never happens this way. The company spends all the money first, then declares bankruptcy. So there is nothing left to hold sacrosanct from bankruptcy proceedings. No pool. No nothing.
Brachiator
@Villago Delenda Est
I see people arguing over rules and contracts and Galtian overlords. Meanwhile, the economy is still coming apart at the seams, and people are losing their jobs.
And sometimes I wonder who is really protecting the proles. Out here in California, grocery workers may go on strike. They last did this three years ago. The unions made a number of concessions, including a tiered wage and benefits program in which newly hired workers get less than veteran employees.
When the dust settled, a lot of veteran workers ended up laid off as some stores were closed. Food prices rose. And many in the simple minded progressive elite yammered about how no one should buy from grocery stores anyway as they ran off to non union farmers markets and overpriced Whole Foods Markets.
drkrick
OT and copied from the thread above, but since Radley Balko is a frequent topic/target around here, it’s worth noting that Cory Maye (background on the case here: http://www.cato-at-liberty.org…..mans-life/ ) has been offered a plea that will reduce his sentence to time served and have him home with his family in a few days.
Balko has been publicizing this case and the institutional problems it illustrates for years, and he and the other people involved deserve a lot of credit for this reversal of injustice no matter what you think of his other work.
Judas Escargot
Thirty pieces of silver buys you a shitload of snails.
Mnemosyne
But, as several people have pointed out, a lot of these government workers are banned from contributing to Social Security, and their pension is the substitute. If you take their pension away, they don’t have Social Security to fall back on.
So you’re basically advocating taking away their only source of retirement income and, when they point that out, saying, “Well, you should have gone into the private sector instead and gotten a job that would have let you contribute to Social Security instead of working for the government. Too bad, so sad.”
J W HAMPTON Sr
Johnson was appointed by a NEO-Right and what do you expect the out come to be at his level. This was almost as bad the the Supreme Couts’ decision on the Class Action against Wal-Mart. I don’t know if thay can top that though! Mn. has been heading down a bad road for some time now. You had better get of the Neo-Rights tales and start thinking what is going on.
Felanius Kootea
@drkrick
Link no work.
Woodrowfan
My Mom is a retired teacher and she contributed to her state pension, while my Dad contributed to Social Security. my Dad died of cancer at age 66 so he only collected for a short time and my Mom DOES NOT GET ANYTHING FROM THEM. Her state pension is her ONLY pension. Fortunately they invested carefully and wisely and so she has enough to live on but if her state decided to suddenly cut back on the promised pensions…..
Felanius Kootea
@Woodrowfan
Well maybe she should have become an investment banker instead of sucking up taxpayer money “teaching.” Imagine if everyone was gainfully employed in the banking and defense sectors, what a paradise the US would be.
/wingnut
My mom is retired from the teaching profession as well and contemplating relocating to a developing country where the dollar stretches a lot further. The only thing stopping her is that at her age, and post-cancer, the lack of quality health care there would be a problem.
Chris
@ Glen Tomkins –
Amen. It’s truly a spectacular thing to watch an entire country commit suicide.
EDT: it was nicely summarized a couple months ago on another blog by the statement “their problem is they won’t do anything redistributive.” That leaves the government with the choice of breaking the budget in order not to break society (as the feds have done) or breaking society in order not to break the budget (as local governments have done via massive layoffs, union-busting and the like).
stuckinred
I’m sure this will piss people off but why do I think folks will figure out how to deal with this?
Mike Lamb
Re: the legal standard–I didn’t read anything about the cases, but it’s possible that the plaintiffs were requesting a preliminary injunction prohibiting the changes in the COLAs from taking effect. In Arizona, that would require showing a likelihood of success on the merits. While “reasonable doubt” sounds off as the threshold for success on the merits, the evidentiary threshold for obtaining injunctive tends to be much higher than in your standard civil suit.
Puff Matty
John,
A few comments on the Colorado case after a quick read of the opinion. First, this is just a trial court opinion — it will be reviewed by the Court of Appeals and, maybe, the Colo. Supreme Court. The issue is a long way from being completely settled.
Second, that said I will be surprised if the decision is reversed. The ruling is limited in scope. The Court, ruling on a motion for summary judgment, not a motion to dismiss, held that the pensioners could not establish a contractual right to an unvarying COLA formula. The court’s decision is based on two primary facts — (1) over the last few decades, the Colo. General Assembly has regularly changed the COLA formula for PERA retirees, and (2) many of the retirees signed papers expressly acknowledging that the COLA formula was subject to change.
Third, the Court further holds that the retirees do have a contractual right to a base pension that cannot be altered by the state.
Finally, several commentators have argued that the “beyond a reasonable doubt” standard is only applicable to criminal law proceedings. That is false, at least as far as Colorado is concerned. Under controlling Colorado law, a plaintiff challenging a statute as unconstitutional must meet the “beyond a reasonable doubt” standard. For those that think such a standard is the nefarious work of a conservative judiciary in these cases, I respectfully submit, most of us who support the Affordable Care Act wish that the federal courts applied such a strict standard.
burnspbesq
@Stuck @ 59:
Asked and answered. See # 34.
Joy
Late to the party, but the “beyond a reasonable doubt” language is a correct statement of the law. Legislation enjoys a very strong presumption of constitutionality and courts will only declare a statute unconstitutional if it is unconstitutional “beyond a reasonable doubt.” I agree that it is a confusing standard to use and more applicable to questions of fact than questions of law, but it is the standard you see articulated in cases where the constitutionality of a statute is being challenged (something I was doing in court just yesterday btw, although not in Minn).
AAA Bonds
@stuckinred:
Maybe they will.
http://www.latimes.com/news/nationworld/world/la-fg-greece-austerity-20110701,0,4755540.story
The American spirit is spreading like wildfire!
AAA Bonds
Brachiator, the revolution isn’t here yet but if you’d kindly goose-step your idiot ass to the wall and wait I’d appreciate it.
Svensker
eemom, this is for you
AAA Bonds
Bonafide shit-eating Koch employees in this thread so far:
Brachiator
martha
We got any more anyone’s caught yet? We need to keep an eye out for these folks – they just ran another ad campaign on Facebook to hire their own trolls.
AAA Bonds
Updated list of Koch employees posting above me:
Brachiator
martha
fuzz
Keep an eye out, people. They all go to the same training camp and use the same tactic: first they express uneasiness with the economy, and then they shift over into selling rank anti-worker propaganda that’s distributed to them by their masters.
“Even some Democrats believe . . .” and “Unions are really the enemies of workers, because . . .” are common catchphrases that indicate a Koch whore.
They’re easy to spot if you know how.
Duane
Just to add a key point in all these cases of elected officials going after state worker pensions…….. They are not touching the pensions of the elected officials…and that would include JUDGES as well…..reduce obligations to actual workers and shore up the pensions of the electeds….i mean they are our betters…. as to the NJ reference and the double dipping we hear about that in OH to…except it is just as big or a bigger problem with ELECTED OFFICIALS….the great gig is to get 20+ years in as a local govt official..say township trustee( who make about 12,000/ yr but it counts as a full year for vesting)…then you get a much higher paying job or office for 1 year/ term….boom! you retire at that much higher rate…as pension is based on highest pay…..then get reelected….and get 2 state checks…. oh and this is a very popular practice among so called small gov’t conservatives…..which has led me to say that the last place you want to be is between a small govt conservative and their government check.
Svensker
@ AAABonds
So anyone who disagrees with you is an outside agitator? Very soviet of you.
AAA Bonds
Svensker, you can live in your marshmallow sparkle world if you want, but the Koch team’s specific mission right now is to infiltrate center-left blogs and tie people’s voiced concerns to anti-worker propaganda.
Stay alert or get dead, it’s your choice.
The chances that there isn’t at least one Koch employee posting on here are very slim, in my opinion, considering John’s well-linked bits on glibertarianism. Three sounds about right, although one person using three names would work as well.
Brachiator
AAA Bonds
This is America. While people take to the streets in Spain, in Greece, even in the UK, here cowards like you post on blogs and dribble out weak ass snark. I’ve been listening to punks like you cry revolution all my life. It is never anything more than poseur bullshit.
And if you seriously think that I give a rat’s ass about the Kochsuckers and their ilk, then you really need to have someone goose-step a boot up your ass.
But then again, fools like you love to shout troll or to try to pigeonhole other posters, because it makes it easier for you to hold onto your own peabrain simplistic views of the world.
Apart from this, I’m sure you’re a nice person.
AAA Bonds
@Duane:
The same “small-government” shell game goes on in North Carolina. My impression is that they usually start with “register of deeds” there – most RoDs I know back home are good and competent people, and ALL of them have stories about the Limbaughite loudmouth at their training sessions.
AAA Bonds
Ah, Brachiator, Brachiator, Brachiator. The bitter glibertarian behind the Koch whore couldn’t hide long, could he?
Real nice try aligning yourself with the European protests there at the beginning. That’s you, just one of the badass dudes hanging out with them, defending them against bad guys like me.
Surely they’d agree with you and not me! Except, no, they’d rain rocks on you until you limped, crying, into a state-owned public transportation hub for safety.
Sure, I could link up the news story about how I helped lead a protest that shut down a metro area, about how the cops came after us with tasers while people booed them from the windows above. But you’d just send that up the wire to your boss, wouldn’t you? I’d get libertarian spam out my ass until I died.
You really need to stick with your Koch lines and not let it degrade into babble like it did in the last post, there. People are going to start seeing cracks even when I’m not here to point them out.
Svensker
@ AAA Bonds
My goodness,this IS alarming. I am on my guard, comrade!
Yutsano
Costa Rica. As long as you have a demonstrated income of $1300 a month you’re welcome to retire there. And they have universal health care.
eemom
happy Canada Day to you too, Svensker. Hell, I wish I lived there.
Brachiator
@AAA Bonds:
There is something seriously wrong with you. I sincerely hope that you get some help.
Hell, I even take you at your word about “helping lead a protest,” whatever that means. But that ain’t the same thing as bringing revolution.
Not by a long shot.
You’re still a snotty little punk. And paranoid and delusional on top of it.
And it is just pathetic that you apparently view yourself as the self-appointed Propaganda Minister for the People’s Republic of Balloon Juice.
Like I said, get some help.
Yutsano
Oh how nice of him to self-appoint to that position. The post had been vacant for quite some time.
Linnaeus
Or, as I like to call it, the serf mentality. Hayek had it backwards.
The solution to the pension problem, apparently, is simply to work until you die.
she's crafty
Did any of you self-appointed legal experts opining about the standard of review actually read the Minnesota case, which was linked in the NYT article? Because “beyond a reasonable doubt” actually *is* the standard in Minnesota for challenging the constitutionality of a statute. There’s a cite to N.W.2d and everything!
It’s 1L stuff, reading the case.
Moving on to the effect all this pension-busting will have: it’s going to affect recruiting, which will affect the quality of, say, the education at state universities. Because why do qualified candidates accept lower pay at state positions? For the benefits. And if the benefits aren’t guaranteed anymore, why would top candidates consider those positions?
Rick Taylor
A contract is a contract! Assuming you’re an executive at a bank who’s been promised obscenely large bonuses.
Gravenstone
AAA, have you always been an anal rimming fuckknob, or did we just catch you on an off day?
General Stuck
Guatemala — They will make you a dual citizen and if you don’t own a fully automatic assault rifle, they will lend you one of theirs. You can rent a sizable casa for a hundred bucks a month, or so. But health care is sketchy, and subject to not existing. just kidding about the health care.
6 or 7 years ago while waiting for a doc appointment at the Albuquerque VA, I started chatting with a group of American vets who had retired in Guatemala, and they loved it, and the cost of living was rock bottom. And every so often, they would just hop on an airplane and head for Albuquerque for their health care.
chopper
@martha:
yeah, that’s true. of course, where you’re getting this idea that us public sector workers looked on and smugly laughed while this happened i have no idea.
in short, eat a bag of dicks and choke on every last fucking one.
chopper
@Brachiator:
hey now, you have to remember, AAA doesn’t want to get his hands dirty in the glorious revolution. his job is to talk on the internet. in the rear with the gear, as it were.
to revolution! i’ll hold your coat. say, your girlfriend is pretty good looking, mind if i ask her out while you’re manning the barricades?
chopper
@Svensker:
watch out, ‘comrade’. talk like that will put you on the blAAAcklist.
2liberal
same thing is happening in RI. however there was a lot of abuse in RI anyway – public retirees got a 3% annual COL increase even if there was no inflation. I have some mixed feelings.
The Moar You Know
AAA Bonds: Glad you’re here. We’ve needed a Joe McCarthy to start “naming names” for quite some time now. Keep it up. It will eventually earn you much respect here.
Johannes
I see that several state courts in fact do use “beyond a reasonable doubt” as the formula for phrasing the presumption of constitutionality. I didn’t doubt it was in the judge’s opinion cited, but it seemed (and seems, for the reasons eemom explained earlier) off to me. Still, I did a little poking around today, crudely, as I’m out of the office, and several states use that phraseology. In New York, and in the Supreme Court, the presumption of constitutionality is usually phrased as a “strong” one, or requiring “a plain showing that Congress has exceeded its constitutional bounds.” (United States v. Morrison, 529 U.S. 598 (2000)). Beyond a reasonable doubt as to federal constitutional claims against federal statutes would be an overstatement, in my opinion. States are free to construct heir own analysis, and Minnesota courts have explicitly stated that it has adopted a reasonable doubt approach. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).
Ah, well! From the state that brought us Bachmann!
Sorry to generate a futile discussion point!
(Edited for coherence)
Victoria Love
When the company where my husband had worked for 29 years sold his division, he lost 40% of his pension because he had not attained 30 years and age 50. I think he was about 1 year shy of both requirements, and even moved in his same position over to the new company and has been there for another 10 years, but the owner of the old one screwed him and several other employees who were of a similar age and tenure. We consulted an attorney, but what do you know, it was perfectly legal. Bastards.
Caz
John, they didn’t “yank it all away.” Did you even read the article you cited?? It seems not. They aren’t taking away anyone’s pension. They are reducing the cost of living adjustment. These people are still receiving the exact same base pension amount that they were promised – they just aren’t getting the cost of living adjustment each year that they were getting.
Perhaps if you were more in touch with reality, you’d have a better understanding of how fiscal pressure around the nation requires measures to be taken so that we don’t end up with a situation where all of the pensions go away because a given city or state is bankrupt. But that would require you to leave your comfortable ivory tower academia world where you’re isolated from real world fiscal pressures. It’s easy to sit up there in your academia office and spew out a bunch of bullshit about how evil conservatives are, and how even minor adjustments to spending in order to avoid a total collapse of a financial system should be met with violent revolution.
But since you don’t have to deal with these problems, I guess I don’t expect you to understand how to deal with real world problems like these.
Your plan seems to be more govt and more spending. Every problem in the nation apparently can be fixed by govt spending. And you don’t even have the slightest clue how out of touch you are.
But you are good at insulting people you disagree with, so you’ve got that going for you. It makes for an entertaining blog, albeit one that is totally full of shit.
NobodySpecial
So, is Caz gonna argue for a tax increase on the wealthy to help balance the books in this time of crisis?
No?
Then shut the fuck up. Syncophant.
Bill D.
@Vishnu Schist
Most Baby Boomers are not Tea Partiers
Most Baby Boomers are not greedy
Most Baby Boomers don’t stereotype generations the way you do.
Greyjoy
But enough of them are.
Bill D.
You could say the same about, for instance, white males.
Besides, Generation X has long voted for Republicans somewhat more than the Baby Boomers have. Now that’s only an average and the difference is not that great, but the point is that there is not some distinct ‘greed party’ that the boomers have been disproportionately voting for while the others voted for a non-greed party.
Barb (formerly Gex)
Not that I’m on the bandwagon of blaming boomers, but a slightly smaller percentage of a much larger group may translate into more votes than a slightly larger percentage of a smaller group.
Caz
How about calling for less spending on a bunch of shit that the govt shouldn’t even be involved with? Raising taxes on the rich won’t yield additional tax revenues. That has been proven again and again. They want to redistribute wealth, you useful idiots, not balance any budgets. If they truly wanted to balance a budget, they’d spend less money. But this blog is chock full of gullable useful idiots that go along with whatever lies they tell you. “We need to punish the rich, useful idiots!” “Drr, ok, sounds about right, tax the rich, those bastards don’t need the money anyway – the govt needs it to take care of us!” Idiots.
Caz
Oh, and notice how John hasn’t addressed the fact that he has no understanding of what the article is saying. He probably saw the title and figured he’d post on it without even reading it, so he assumed they were taking entire pensions away. John, if you had read the article correctly, this wouldn’t even be a post, lol.
You all are so full of hate and resentment you ought to all move to California and secede – give your socialist ideas a try in a new country called California and see how long before you’re crying and begging to be part of a free nation again.
Al Moncrief
Hey Puff Matty:
I read through Judge Hyatt’s decision carefully and have the following observations. Many of his arguments are fallacious and betray a lack of understanding of DB plans. It is outright, unabashed theft. This is the country we live in. (Apologies for being long-winded.)
(1) The Judge doesn’t seem to understand the difference between and “ad hoc” COLA and an “automatic” COLA. Surveys of defined benefit pensions in the United States identify Colorado’s pension COLA as an automatic COLA.
(2)The Judge writes that “plaintiffs unarguable have a contractual right to their pension itself.” He further writes that the pension COLA provisions contain no durational language suggesting that a contract has been created, and that a pension provision requires a clear indication that the Legislature has intended to bind itself in a contractual manner. This begs the question, if the test of enforceability of a statutory pension provision is accompanying durational language or a clear statement of the intent of the Legislature to create a contractual obligation, then how did the Judge go about determining that “plaintiffs unarguably have a contractual right to their pension itself.” I do not recall that each separate provision of Colorado’s PERA pension statutes (there are hundreds) is accompanied by durational language and a clear statement that it constitutes a contractual obligation. In don’t recall any of our statutory pension provisions having such explicit qualifiers attached. If the Judge’s argument that a pension provision must be accompanied by durational language and a clear statement that the provision constitutes a contractual obligation, then public pension obligations across the country are unenforceable . . . mere gratuities, since they fail this test. Courts in the United States have found that pension provisions are contractual in nature. Judge Hyatt is arguing that somehow a certain type of pension provision (COLA) constitutes a gratuity rather than a contractual obligation.
(3) The Judge’s ruling seems to contradict the opinion of the Nebraska Supreme Court which ruled in the pension COLA case Calabro v. Omaha that “due to the lack of information from which an employee could ascertain that the supplemental benefit plan (COLA) was a mere gratuity from the city, the city treated the supplemental benefit plan like a pension.” This placed the burden of proof on the city to eliminate the COLA, not on the retirees. Further, the court stated that nothing in the city ordinance “put the employees on notice that the supplemental benefit could be taken away with the stroke of a pen,” and that employees “may well have been induced to work for the city because knew they were guaranteed a COLA.” The Nebraska Supreme Court ruled that the supplemental benefit plan (COLA) constituted “pension.” So, who is correct? Is it Judge Hyatt or is it the Nebraska Supreme Court? Only one can be right.
(4) The Judge and PERA are attempting to establish a legal distinction between statutory pension COLA provisions and statutory pension base benefit provisions. This attempt is a contrivance designed to permit defined benefit plan sponsors to escape their debts.
(5) Question: As I understand it, the Dewitt case is an insurance case. Is it applicable to defined benefit pension law?
(6) Judge Hyatt spends a good deal of space in his ruing laying out historical changes to the COLA. He does not seem to grasp that it is not unconstitutional to increase an automatic COLA. It is unconstitutional to reduce an automatic COLA. If a COLA benefit is improved, there is no harm done to the benefit recipient. The taking occurs when an automatic COLA benefit is diminished.
(7) The Judge supports his opinion by noting that certain DPS retirees signed a document acknowledging that the COLA could be changed. How does this fact in any way invalidate the claims of retirees who did not sign such a document?
(8) As I understand it, in law, the word “shall” means mandatory and imposes an obligation.
(9) The Judge states that “plaintiffs are unable to explain how one can have a reasonable expectation to an unchangeable COLA formula.” If this is true, then why did PERA state in pension materials that retirees “will receive an automatic increase of 3.5 percent in their monthly retirement benefit to help keep up with the cost of living.” Is the Judge stating that PERA does not understand the pension that they administer? If a sophisticated organization such as PERA does not understand its own pension, how does the Judge expect a layman to comprehend it? Implicit in the Judge’s opinion is that public employees (and investors?) cannot rely on their plan documents to state the truth, that plan documents may legally deceive retirees (and investors?) How many legal decisions does this contradict?
(10) The Judge writes that the “base pension benefit structure” was not altered by SB 10-001. This is an odd statement recognizing that SB 1: included anti-spiking language that altered calculation of the base benefit at retirement, reduced the base benefit of members who retire prior to eligibility for full retirement benefits, and permitted some retirees to work longer for certain PERA employers with no penalty applied to their base benefits.
(11) The Judge writes that the “legislation bears a reasonable relationship to the legitimate governmental interest of reaching a one-hundred percent funded ratio.” This statement betrays a lack of understanding of defined benefit pension plans. Reaching a 100% funded ratio for a DB plan is not a legitimate governmental interest. As I understand it, according to GASB, DB plans are well-funded at an 80% actuarial funded ratio. It may be a legitimate governmental interest for a plan to reach 80 percent.
(12) Senate Bill 1 included a provision requiring PERA to provide written notice to its members, that in the event of an actuarial emergency, the General Assembly may alter member benefits provided by the plan. Why did the Legislature feel compelled to put this provision in the law? Do they believe that they are limited in altering pension benefits short of an actuarial emergency?
(13) I can imagine that Judge Hyatt’s opinion is quite a news flash for all working PERA members who thought that the “guaranteed” COLA was part of their pension benefits. Judge Hyatt has ruled that PERA doesn’t have to pay you any COLA at all. Accordingly, the value of your pension, for which you will work in the coming decades is significantly diminished. The Judge’s ruling will also be news to PERA’s actuaries, and to actuaries across the country who have been including pension COLA obligations when determining the funded status of DB plans. This is no longer necessary since, according to the Judge, the COLA is a gratuity. The Judge’s ruling will be news to S&P and Moody’s who have been using the funded status of DB plans when rating bonds issued by their governmental sponsors. The Judge may not realize it, but he has singlehandedly solved the pension “crisis” in the USA. Presto! Pension debts have vanished!