Engage Rhode Island, the deep-pocketed advocacy group closely tied to Treasurer Gina Raimondo, released an unsigned three-page document [pdf] on Monday that makes the case for the legality of the 2011 pension law. Here’s the core of the argument:

If the Rhode Island Supreme Court affirms Judge Taft-Carter’s Decision, it will reverse its own precedent on the unmistakability doctrine, and create new constitutional law which will differ from federal court precedent and the precedent of the majority of state courts in this country. … If the judiciary can require a legislature to bind itself forever through one legislative act, which can never be revisited, the judiciary is thereby given too much power. Thus, it is important to hold from a separation of powers perspective that, unless the legislature’s intent to create contractual rights against the state is unmistakably clear, it should be free to amend its own legislation in the future.

Read the entire PDF here. For an alternative view, check out this from RWU Law’s Michael Yelnosky.

• Related: Mediation to continue in RI pension suit after judge gets update (Feb. 28)

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)

Brown University’s 54-member board probably won’t vote this weekend on whether to increase its voluntary payments to the city of Providence because a formal proposal isn’t on the table yet.

“We are continuing discussions with the mayor at this time and do not expect action coming out of the Corporation because those discussions have not yet produced a proposal for the Corporation to consider,” Brown spokeswoman Marisa Quinn told WPRI.com, using the board’s formal title.

The Corporation, whose members include Bank of America CEO Brian Moynihan and Providence Equity Partners chief Jonathan Nelson, meets three times a year and usually approves the university’s budget in February. Talks between the school and Providence Mayor Angel Taveras resumed last week after deadlocking in December.

“We look forward to meeting with the mayor and the other nonprofits to discuss fair and constructive opportunities to strengthen Providence,” Quinn said.

Separately, a spokesman for the Rhode Island Supreme Court said the five justices would not issue an order or make any other announcement on Thursday about whether they’ll agree to an expedited review of Providence’s appeal of a lower-court decision blocking the city from moving retirees to Medicare.

• Related: Mayor Taveras hopeful Providence can avoid bankruptcy (Feb. 6)

By Ted Nesi

PROVIDENCE, R.I. (WPRI) – The Rhode Island Supreme Court’s five justices will meet Thursday to decide whether to give a speedy hearing to Providence’s appeal of a lower-court ruling blocking the city from switching its retirees’ health insurance from Blue Cross & Blue Shield to Medicare.

Associate Justice William Robinson sat down with lawyers on both sides of the case Wednesday afternoon and decided he wanted to wait for his four colleagues to weigh in rather than make a temporary decision himself about Providence’s request for an expedited review, court spokesman Craig Berke told WPRI.com.

The justices are scheduled to hear oral arguments together on Thursday, allowing them to take up the matter more quickly than is sometimes possible. All the justices have already read the two sides’ briefs in the case, said David Ortiz, a spokesman for Providence Mayor Angel Taveras.

Robinson’s comments to lawyers about the justices’ views “confirmed that they consider this to be a case of great importance and significance,” Ortiz told WPRI.com. The city hopes oral arguments will be scheduled within the next two weeks if the justices agree to an expedited review of its appeal, Ortiz said.

Taveras said Superior Court Judge Sarah Taft-Carter’s ruling against the city on the Medicare change has pushed Providence to “the brink of bankruptcy.” Governor Chafee filed an amicus brief supporting him, saying the case could impact “all municipal and state efforts to achieve fiscal health through needed reforms.”

There’s an understandable inclination to read a lot into the Rhode Island Supreme Court’s decision Tuesday not to intervene and overturn Superior Court Judge Sarah Taft-Carter’s pension ruling from September. But it’s probably wise to resist the urge.

The justices “declined to intervene in the union lawsuit against the state” challenging reductions in pension benefits enacted in 2009 and 2010, court spokesman Craig Berke said in a short statement.

Berke took pains to emphasize that citizens shouldn’t read took much into the justices’ decision not to grant certiorari.

(more…)

In his decision [pdf] upholding Rhode Island’s new municipal receivership law on Tuesday, Supreme Court Justice Francis Flaherty outlined the sequence of events that led to Central Falls’ initial filing and the state’s subsequent takeover of the city. But did he get the chronology right?

Here’s an excerpt from Flaherty’s decision (emphasis mine):

And thus, believing there was no other viable solution to the city’s dire financial plight, the mayor and city council in May 2010, petitioned the Superior Court for the appointment of a receiver, a petition that was granted by the court.

At the same time, however, legislation that would enact a major revision to chapter 9 of title 45 was working its way through the General Assembly. Signed into law in June that same year, the legislation prohibited municipalities from seeking the appointment of judicial receivers, but instead authorized the director of the Department of Revenue to implement a defined process to restore stability to a fiscally imperiled city or town.

I don’t think that’s accurate.

My recollection from reporting on the situation at the time was that both the Carcieri administration and the General Assembly were caught off guard when Central Falls filed for receivership, and they had to scramble to respond. And as far as I can tell, the evidence backs up that account, rather than Justice Flaherty’s.

First and foremost: the text of the actual receivership bill [pdf] says it was introduced on June 8 – just two days before the General Assembly passed it, three days before Carcieri signed it into law, and three weeks after Central Falls filed for receivership on May 19. So technically speaking, the bill was only “working its way through the General Assembly” for three days in early June.

Perhaps, though, the legislation was quietly being drafted behind closed doors prior to May 19, then rushed through the House and Senate after Central Falls’ filing? Contemporaneous reporting makes that look doubtful, too.

Here’s what I reported in a PBN article on May 20, the day after Central Falls filed for receivership:

Larry Berman, a spokesman for the House leadership, said he had not heard any discussion about the General Assembly taking action to either allow Chapter 9 or do something else to aid Central Falls.

And then here’s what John Hill reported in the Projo on June 12, two days after the new receivership law was signed:

It was the city’s May 19 filing for a receivership, the state-law version of federal bankruptcy protection, that triggered the drafting and passage of the legislation.

And this from the General Assembly’s own press release on June 17:

The legislation, sponsored by House Finance Committee Chairman Steven M. Costantino and Senate Finance Chairman Daniel Da Ponte, was created in response to Central Falls’ entrance into receivership last month and to financial struggles facing other communities, and is aimed at protecting all Rhode Island communities’ bond ratings from potential fallout.

On top of that, a May 21 Projo story by Hill and Steve Peoples that rounded up reactions to Central Falls’ receivership filing carried no mention of pending legislation to deal with the problem from Governor Carcieri or anybody else:

“This is all new ground. It’s new ground for the courts as well,” Governor Carcieri said. “It’s obviously very concerning.”

The governor said his office may argue against the move in Superior Court, which will ultimately decide if and how an independent “receiver” may reorganize Central Falls’ finances, a state process comparable to federal bankruptcy reorganization.

“That’s one of the things we’re evaluating right now,” Carcieri said of trying to influence the court case. “I’m concerned about the ramifications of this on other municipalities, on how we’re looked upon as a state if it’s easy for a town — I’m not saying they do it lightly — but if, suddenly, you can go into receivership.”

I’m not saying this is a huge deal, but it did seem worth correcting the historical record, particularly since former Auditor General Ernest Almonte told us in January that state officials could have seen Central Falls coming if they’d been paying attention.

Attorney General Patrick Lynch joined an environmental organization and two businesses on Monday in asking the Rhode Island Supreme Court to throw out the R.I. Public Utilities Commission’s Aug. 11 decision to sign off on a deal between National Grid and Deepwater Wind.

And in his statement asking the court to take up the case, Lynch draws an eye-popping historical parallel:

Not since the events surrounding the case of Trevett v. Weedon [sic] (1786) – in which the Justices of this Court’s predecessor were summoned to the floor of the General Assembly to face firing for non-implementation of an enactment that abridged specific trials and stripped the court of jurisdiction – has the judicial function been so threatened in this state. …

So too, the current affair – featuring an attempt at retroactive legislative dictation of the result of a case-specific fact question that had been adjudicated – will have an impact far beyond the parties. This case provides an opportunity for the Court to illuminate Rhode Island’s ongoing exploration of the separation-of-powers.

Now that’s what I call a rip-roaring writ of certiorari.

Update: So, what happens next? First, the Supreme Court has to decide whether to take the case. If it does, the two sides will have to file their opposing briefs and then argue the case before the justices. Considering that Deepwater wants to get going on building the wind farm, they may ask for an expedited review, which would likely see the case decided before the end of the year. But that’s just an informed guess.

Updated #2: Turns out the AG’s office was writing a little too hastily – the correct name of that post-Revolutionary War case they referred to was Trevett v. Weeden, not Weedon. But Wikipedia reports (and other sources confirm) that Weeden was one of the cases that set the stage for Marbury v. Madison, the famous 1803 U.S. Supreme Court case that established the principle of judicial review.