So there’s this big brouhaha between the House on the one hand, and the Gov and the Senate on the other, about what to do about pension reform. The Governor and the Senate want to apply the pension reforms to everyone in the system. But no, the House says, we should only apply the new rules to new hires. Everyone in the system now should get the benefit of the current rules. Or should I say, “rules.”
The House’s primary justification appears to be that the SJC made them do it.
Spellane cited a 1973 advisory opinion of the state Supreme Judicial Court saying pension rights are contractual obligations the state must honor.
“The SJC is very clear that pension rights begin the day an individual begins public service and participates in a retirement system,” Spellane said in an interview in his office. “The House clearly supports the SJC ruling.”
I haven’t read the 1973 advisory opinion. I don’t really care what it says. The solution to this is very simple:
Ask the SJC again.
Why again? First, almost certainly the issue in 1973, whatever it was, was not exactly the same as the issue now before the legislature. Second, the membership of the Court is different now, and as a technical legal matter previously-issued advisory opinions do not carry the force of binding precedent the way ordinary decisions involving actual litigants do.
Now, do the Justices themselves have a conflict of interest here? You bet — the Globe reports that “The Massachusetts Judges Conference, the Beacon Hill lobbying organization that represents most of the state’s 370 judges, also supports [the House’s] position.” But the conflict is unavoidable, and in those circumstances the SJC’s job is to decide the issue anyway.
The House’s view, apparently, is that the SJC is on its side. It would seem, then, to fall to the Senate to ask the SJC whether that is true. The Senate has the authority to do so, and it should exercise it (the Governor can also request an advisory opinion, but not until a bill is actually on his desk, so the Senate is much better situated to ask). Let’s get this settled once and for all instead of back-and-forthing about it.
Actually, I’m a humble caveman still baffled by your amazing technology, and there’s not much about your exciting world that I do understand. But what even an unfrozen caveman can figure out that taking thousands of dollars from people under one set of rules, then declaring (now that their money is lost) something else is going to happen to it is wrong.
You mean like social security did? As when I started work, it said I could retire at full benefits at age 65, then changed it to 67?
Give that there’s roughly 52 between 19 and 65 and there’s 52 weeks in a year, why didn’t they simply prorate?
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p>If you’re 64, then you get to retire at 65.02 (65 years, one week old). If you’re 39, then it’s 65.5 (65 years, 26 weeks). Of course, if you want to push retirement back more than 47 weeks (and they did), just increase by a factor of 3 for example. So, if you’re 64, you get to retire at 65.06 (65 years, 3 weeks old), etc.
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p>This way, you keep the old rules for what you’ve done so far, and the new rules for your future contributions. It phases in over an entire working lifetime, but doesn’t renege on a promise already made.
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p>I can’t come up with a reason to treat pensions any differently. Just take the linear function — you keep what you’ve got, and the new rules apply on the next contract, with your pension (retirement date, etc.) prorated.
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p>Sure, it means there isn’t as much in “savings” right now, but the extra savings amount to reneging on a promise, and that just isn’t the right thing to do under these circumstances.
There are amendments in the House right now that potentially cause retroactive step-up as result of changes in employment classification:
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p>So, esteemed Reps say, you can’t take away pension for service rendered, but they have no problem with retroactive enhancements.
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You had to go live much longer than you were supposed to. That’s the problem.
The problem, or at least the difference is that the Supreme Court in Helvering v. Davis and Flemming v. Nestor, the U.S. Supreme Court ruled that Social Security taxes are simply taxes and convey no property or contractual rights to Social Security benefits.
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p>By contrast, the SJC found that state pension was a property right in that 1973 case, which in turn created ‘tiers’ of employees, each with difference contribution rates depending on when they became employees.
Impose a 100% tax rate on any increase in a pension due to the pensionee taking advantage of one of these evil ‘loopholes.’ And impose a withholding obligation on the MA Treasurer in case any of these scuttlebuts try to retire to FL or NH to live fat on the hog. It doesn’t impair any contracts, and it might even be legal because nobodyactually knows what constitutes a Bill of Attainder in the post-1820 era.
The real issue is that the people who benefit from the existing system don’t want to change it, even if Truth Justice and the American Way are on the side of reform.
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p>The SJC argument is just an excuse. “Yes, yes, a thousand times yes,” the court may say, but the House will still say No, unless forced to change, because that is where their bread is buttered.
Yes it is. But let’s at least see if it’s a real excuse. If it’s not, they’ll have to come up with another, far less persuasive, fig leaf.
This is sounding mighty logical.
Only a fool would prognosticate on such a technical and legal matter without showing at least some interest in the SJC advisory opinion under dispute. It is available online to those with a little more interest in the topic than David:
http://masscases.com/cases/sjc…
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p>That said, the opinion is certainly about somewhat different pension “reform” legislation as it concerns an attempt to raise the worker contribution level (from 5% to 7%) of salary rather than the current pension reform law passed in the House this year which concerns primarily supplementary benefit rules which allow higher pensions for certain specific government worker classifications.
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p>However, the SJC ruling is unanimous and very clear. Though (as you note) an advisory opinion do not carry as much force as binding precedent, the SJC does offer a review of the previous cases and legislation that impacted their opinion.
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p>Of particular importance is this line in the SJC opinion which states “It is true that a few cases that adopt the label of ‘contract’ have approached the terms of a retirement plan as they would a bond indenture, but closer to the realities is the view that ‘contract’ protects the member of a retirement plan in the core of his reasonable expectations, but not against subtractions which, although possibly exceeding the trivial, can claim certain practical justifications.”
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p>The SJC also goes on to cite favorably another state court’s ruling which explained their understanding of the limitations of the “contract” relationship as it applies to a state pension system: “However, this does not preclude reasonable modifications of the pension plan prior to the employees’ retirement. Reasonable modifications are often necessary in order that the pension system may be kept flexible, to permit adjustments in accord with changing conditions and to maintain the integrity of the system in order to carry out its beneficent purpose. . . . To be sustained as reasonable, alterations of the employees’ pension rights must bear some material relationship to the theory of a pension system and its successful operation, and changes which result in a disadvantage to the employees should be accompanied by comparable new advantages. . . . The validity of attempted changes in vested pension rights depends upon the advantage or disadvantage to the individual employee whose rights are involved, and benefits to other employees cannot offset detriments imposed upon
those whose pension rights have accrued.”
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p>This language offer exceptional guidance to those truly interested in this issue. I would argue that it suggests to the careful reader that the Senate would probably have the winning argument when it comes applying the particular (very limited) “pension reforms” to the current state workforce. It certainly offers more clarification than the “let’s throw up our hands and revote” approach.
QED.
They would seem to be more abstract and general about the law, whereas cases with real litigants are always ad hoc to the particulars of the case. And, are any decisions truly “binding precedent”? Aren’t all cases a little bit different, with different justices and different public mores?
Because the SJC has said so. I believe there is an instance in which a bill was said in an advisory opinion by the SJC to be constitutional, whereupon the legislature enacted it, it was challenged, and the Court struck it down. Can’t come up with the cite offhand.
I asked why are they “less binding”? Aren’t all decisions “non-binding”? The only reason the Supreme Court’s decisions are considered final is because there are no more courts to appeal to, for that particular case.
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p>And, doesn’t the instance you mention make your advice rather worthless? Why bother asking for an advisory opinion if they aren’t binding?
… same reason that the executive might ask for and OLC opinion… to avoid future trouble. As given, advice could be taken or ignored.
What are the odds that the court would issue a non-binding bit of advice and then overturn the implementation of that advice later?
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p>It’s not 0%. Is it more or less than 50%? I’d suggest that it’s far less. So, getting the advice isn’t foolproof, but it would increase the level of certainty.
Thank you for reading and commenting on that entire SJC decision. Also of interest in that opinion were the statements by the SJC that the subject matter of that decision — the superannuation, or regular, retirement process — is “central” to and “at the heart of” the public pension system. Additionally, the SJC also opined that the Legislature’s justification for a modification of the system “is entitled to judicial respect; especially so if that opinion is buttressed by prior formal investigation of the facts.”
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p>In my humble opinion, the special section 10 retirement benefit for legislators who decide not to seek re-election is neither central to nor at the heart of the public pension system, unless you believe that the system is completely corrupted. Maybe the Legislature hasn’t undertaken a formal investigation of the facts surrounding that perk, but the press certainly has. I’d bet my retirement COLA, when and if I get there, that the SJC would not disagree.
In the news stories I’ve read, the legislators and judges are referred to as if they were in the same ‘class’.
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p>Now the Lege has MANY unique and inexplicable benefits, as does the judiciary. HOWEVER – legislators are elected and the judges are not. So why is it reported that changes in benefits for the Legislature would also affect the judges?
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p>Why not say change for ELECTED officials and be done with it?
for example, wouldn’t the provision whereby you’re credited for a full year even if you just work a day apply to judges as well as legislators?
I believe legislators are vested after one 2 year term instead of 10 years like minions, but does that apply to judges, too?
I’m not terribly well versed in the arcana of our pension laws.
Unlike all other public employees who are vested after 10 years of service, public officials are vested after only 6 years. Judges have many special perks, but they don’t have that one-day-bonanza perk that only applies to legislators.
BUT – s/he had a term as Selectman under the belt – 3 years. Then, two as Rep. Then a day. Voila! 6 years.
As best as I can tell, the judges conference is concerned because they want to hold onto the golden rule that changes in the public pension system can only affect individuals hired after the pension changes go into effect. Many judges who were vested in other public sector jobs can collect a second judicial pension. Governor Patrick wants to change this, even for today’s judges. The argument against the change is the same argument against changing any of the perks for today’s legislators. They are all in this together, upholding the principle, so they can protect each others’ perks.
but wouldn’t changing pension rules for only new hires do exactly nothing to help our current situation. Or at best, would help probably many years from now?
That’s part of why the House’s proposal leaves a tad to be desired.
well, it’s a damn good thing all these people are going to get elected again.