Editor's note: This column was first published on Feb. 24, 2014 in The Times and The Call.
One of the selling points General Treasurer Gina Raimondo employed in
pushing for the pension settlement you may have seen something about in the news lately is that it brings "certainty" and "finality" in that it puts an end not only to the slew of lawsuits challenging the 2011 law, but also the court challenges to the 2009 and 2010 pension reform efforts.
And so it does. Until the next time.
North Smithfield Rep. Brian Newberry, the House Republican leader, has
worried on Twitter that the negotiated nature of the settlement would, if the General Assembly approved it, be locking the legislature into the notion that the settlement is a type of contract that the lawmakers ratified. Newberry seems to believe that sometime in the future, the General Assembly will have to once again make changes to pension rules and benefits.
Some union rank-and-file folks have the opposite, but in some ways similar concern: that by entering the settlement, the unions have abandoned the opportunity to have the courts rule that they have a contractual right to their pensions. They fear that somewhere down the road, the politicians are going to monkey with their pensions again.
In expressing their opposition to the idea, both Newberry and the union dissidents help make the proponents case for why the settlement was probably necessary.
What it comes down to is that nobody, not the governor and the general treasurer, not the General Assembly, not the litigating union members can force the judiciary to do anything, including, importantly, answer the question it is asked.
That is how we got into this whole pickle with the protracted mediation and negotiated settlement. The two sides went to court to get a simple question O.K., if not a simple question than at least a straightforward one answered: Did the General Assembly have the right to unilaterally change the pension benefits and rules that they had been forking over a substantial portion of their paychecks every two weeks to receive?
That is a constitutional judgment that Judge Sarah Taft-Carter did not
want to make. To be fair to her, no Superior Court Judge ever wants any part of deciding a constitutional dispute. Superior Court judges would sooner pull out their own molars with rusty pliers before they would wade into a constitutional ruling. That is the job of the Supreme Court.
It may be the Supreme Court's job, and they might do it when they
absolutely have to, but they, too will do everything in their considerable power to avoid doing so as well.
Had the 2011 pension suits gone all the way to trial Â¡V which they just might on Sept. 15 if the settlement isn't approved by the General Assembly before that, but that is unlikely as well, there is no guarantee that the five justices would give a direct answer to the
straightforward question put to them. They could answer some other
question that is somehow similar, or a completely different one. Who's going to tell them they can't? Their word is final.
Even at the Supreme Court level, the solution isn't cut and dried.
Everybody has posed the question as whether or not the unions, by virtue of paying significant amounts of money over time, in effect, a quid pro quo, have a contractual right to the pensions they were told they were entitled to.
The state was probably a bit afraid that question would come back as yes, which could be why they agreed to the settlement. However, as those TV ads for cheap gizmos, say, But wait, there's more. There is a loophole in the case law that says that even if there is a contract and a legislative action significantly impairs that contract, the action can still be taken if there is a necessary and compelling public purpose, or some legal lingo to that effect. That was the big uh-oh, on the union side and why they
agreed to the settlement rather than taking their chances in court.
When you think you have a gun to the other guy's head in court, that is always the time it will backfire and get you instead.
The settlement does not provide certainty nor finality. If
anything, it for the most part preserves the uneasy status quo, and right now that seems to be good enough for both sides.
Courts aren't the only ones who don't want to touch this sucker with a
barge pole unless they absolutely have to. Take a look at this from House Speaker Gordon Fox and Senate President Teresa Paiva Weed, released the Monday after the settlement agreement was announced:
"We are still carefully reviewing the proposed pension settlement. We are going to give it the careful consideration that it deserves and we will be speaking with our respective House and Senate members to gauge their views as well. There is a long road ahead of us and the release
of the details of the settlement, which we were not party to, is just a first step. We will await the votes to be taken by both union and
non-union members before we weigh in further."
I'll translate: Please, please, please let the unions or the judge or someone short-circuit this before it gets to us so we don't have to go through this pension stuff again.
Some leftover thoughts:
--Cities and towns could be the wild card in this situation. Can mayors and town administrators put enough heat on their communities legislators in an election year to convince them not to approve the settlement, something a large number of them don't want to do anyway?
--Dan Beardsley of the RI League of Cities and Towns has been harrumphing that local municipalities did not have a seat at the table in the pension negotiations. But where was the taxpayers' seat at the table?
I loved the Tweet from CNN's Jake Tapper. It was a photo of text that
said: "If someone from the 1950s suddenly appeared today, what would
be the most difficult thing to explain about life today? A: I possess a device, in my pocket, that is capable of accessing the entirety of
information known to man. I use it to look at pictures of cats and get in arguments with strangers."
Did you see where rocker Ted Nugent, the Motor City Madman, has apologized to President Barack Obama? Well, sort of anyway.
In January, the rock-and-roll gun enthusiast gave an interview to a gun magazine in which he said: "I have obviously failed to galvanize and prod, if not shame, enough Americans to be ever vigilant, but not to let a Chicago communist-raised, communist-educated, communist-nurtured subhuman mongrel like the ACORN community organizer gangster Barack Hussein Obama to weasel his way into the top office of authority in the United States of America. I am heartbroken but I am not giving up."
Nugent, who has been campaigning for Texas gubernatorial candidate Greg Abbott had to back down and he told a radio talk host: "I do apologize not necessarily to the President but on behalf of much better men than myself." He said he was using "street-fighter terminology" (wonder when
old Ted was in his last street fight) and that he should have instead said something like "violator of his oath to the Constitution."
By the way, he said he was apologizing for the term "subhuman mongrel."
Apparently he was O.K. with the rest of his quote.
Jim Baron covers politics for The Times and The Call and is a weekly columnist.