‘Pension law may be unconstitutional,’ RI law professor warns

December 24th, 2012 at 5:00 am by under Nesi's Notes, On the Main Site

Roger Williams University law professor Michael Yelnosky had an important op-ed in Sunday’s Projo about the state pension law, warning Rhode Islanders that they shouldn’t take the public confidence of the law’s supporters as a sign that it will be upheld by the courts.

Here’s Yelnosky:

A reader of these pages could be excused for concluding that the state will no doubt prevail in the lawsuits brought by the thousands of current and retired public employees affected by the 2011 Rhode Island Retirement Security Act. …

But these opinions gloss over some real legal issues. …

The “Contract Clause” of the Rhode Island Constitution (in the same language as the U.S. Constitution) prohibits the state from passing “any law impairing the obligation of contracts.” The retirees assert that the pension law does just that by reducing the annual pension benefits they earned during a career of state employment — benefits set forth in Rhode Island law. …

I am not predicting that the plaintiffs will win their cases. I write because the commentary on these pages does not take the plaintiffs’ arguments seriously. Some might wish it were not so, but judicial review of the pension reform law is the next step unless these cases are settled. If we are going to have an informed public debate about the desirability of settlement talks, a more balanced description of the legal landscape seems in order.

Yelnosky’s points reinforce others published here in the past – NEARI’s Robert Walsh made the union’s case at length when the suit was filed, and pension-law expert Amy Monahan of the University of Minnesota warned a year ago that this was a major legal gamble by Treasurer Raimondo and other Rhode Island leaders.

As Tim White has emphasized in his reporting, the key players here almost certainly will be the five justices of the Rhode Island Supreme Court: Suttell, Goldberg, Flaherty, Robinson and Indeglia. Are they willing to risk a “judicial backlash,” as Harvard Law’s Noah Feldman put it, by striking down a law backed by large majorities in the General Assembly, and in doing so place a major burden on strained state and local budgets?

Of course, as one smart legal observer reminded me recently, the justices also have the option of throwing out only part of the law and keeping the rest. The fiscal impacts of a mixed verdict will all depend on how the justices carve up the law’s provisions. Either way, taxpayers and their elected representatives should at least be contemplating what they’d do the day after the justices strike down the law.

• Related: Study: RI pension bill ‘a good approach’ – and it may be legal (Nov. 4, 2011)

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5 Responses to “‘Pension law may be unconstitutional,’ RI law professor warns”

  1. Malachi Constant says:

    Why the media falls for people like Gina over and over again ( think “raimondomania”) but people like Bob Walsh need 3 or 4 back up supporters before they are given any serious consideration is a major problem for Rhode Island.

    1. MICHAEL RILEY says:

      come on mr constantly whine…you know why

  2. GaryM says:

    Ted,

    Are you suggesting the law is expedient, and not blind (you know, lady liberty, aka Goddess Justitia, holding the scales of justice)?

    I see those scales beginning to tip a little bit towards the “we can’t afford to pay” expedient side.

  3. Vincent Brannigan says:

    It is the sworn obligation of Judges to judge the law as they see it. Rights are particularly important to any insular minority. The whole point of a “bill of rights” is that rights are not subject to majority vote. Whether Rhode Island employees have a contract subject to the contract cause is a legal question on which I have no opinion. But if it is a contract the Supreme Court has clearly limited the ability of a state to impair the contract for its own political benefit, no matter how popular it is with voters.

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