Plaintiffs File First Colorado Supreme Court Brief

Plaintiffs’ attorneys Stephen M. Pincus, William T. Payne and Richard Rosenblatt filed their first brief with the Colorado Supreme Court Thursday. You may read it at http://saveperacola.files.wordpress.com/2013/10/2013-10-24-plaintiff-petitioners_-amended-opening-brief1.pdf .

This brief addresses the three issues that the SC agreed to address when it granted a writ of certiorari. They are:

Summary of Issues:

Whether the contracts clause framework articulated in In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002), applies to all contract clause claims under the Colorado Constitution.

Whether Colorado Public Employees’ Retirement Association members have contractual rights to the cost-of-living adjustment formulas in place at their respective retirements for life without change.

Whether SB10-1, which adjusted cost-of-living adjustments to their current level of two percent compounded annually, was constitutional because it (a) did not substantially impair contractual expectations and was reasonable and necessary to ensure the pension funds’ long-term viability, and (b) was not a regulatory taking.

Based on the time it will take for the next three briefs to be filed (defendants’, plaintiffs’, defendants’) and then time for oral arguments and a written decision, we should potentially have a definitive answer from the supreme court by the end of 2014. The unknowns are whether the case will be remanded to district court for further action, or whether any of the parties will appeal to the federal courts. At any rate, this is a five year case, more or less, as we expected.

For those of you who are wondering how much Senate Bill 1 has cost you so far, know this:

1. For every $1000 of monthly benefit you receive, you are not receiving $1036 each year that you should have.

2. Your monthly benefit is 8.63% less than it currently should be.

3. Each year in July the differential increases by more than 1.5% (due in part to compounding).

4. These numbers assume you were already retired in February of 2010. If you retired later, they will be less but still quite substantial. Denver School Division numbers are slightly less.

We are approaching our commitment goal to pay the attorneys our small portion of their huge costs to litigate this case. If you believe your retirement income was earned by you or your spouse, and that the State of Colorado cannot take it away to pay for its other discretionary fancies, then you should contribute to this effort.

Support the lawsuit with a donation. Please mail a check to:

Save PERA COLA                                   

ATTN. Judy Ganschaw, Treasurer

3241 S. Josephine St.

Denver, CO 80210

Or make a donation using Paypal: Note that if you use Paypal, we will be charged a 2.9% fee, plus $.30 per transaction. For any donations, sending us a check will avoid this fee.

Thank you for your support!

Rich and Gary

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6 Responses to Plaintiffs File First Colorado Supreme Court Brief

  1. barrythorpe says:

    There are some great comments here written by people who have done much research, and who obviously have some knowledge of the law and the citations used in reference to these arguments.
    As a former science teacher, I claim no expertise in the law, but I do have some observations I’d like to share upon reading the defendants’ arguments.

    One finds this passage early in the response: “Looking to statutory text, the court determined that the “COLA provisions . . . have never included durational language.”
    If the defendants claim that lack of “durational” language is a justification for a unilateral change to the retirement agreement, THEN likewise, the lack of “variability” language is an equally strong argument. There is no reason to assume the default position is reduction or variability in the “COLA” if no language exists that either ensures duration OR describes variability. The argument fails.
    In addition, I believe that there IS durational language, and it is contained within the very title of the benefit in dispute. The term “ANNUAL” is well understood to mean once a year, every year. It would take quite a stretch to claim that a reasonable person, preparing to retire, would suspect that word-games will soon be played with the fully-vested benefits, earned over a career, and somehow forsee that “annual” means “only some years”, or “a few years”, or “under some conditions not at all”.(I have mentioned here before that allowing our benefit to be called a COLA was going to be problematic.) I agreed, upon retirement to an “Annual Benefit Increase”: a term that has BOTH durational and directional language. Annual= every year. Increase=going up, not down, or being static.
    I claim breach of contract because I have not received 3.5% every year, and I received no increase at all in the first year after the law passed.

    “The opinion recognized that to “overcome the presumption” that statutes do not create contracts, there must be “a clear indication that the legislature intended to bind itself contractually.” ……If statutes do not create contracts, I cannot imagine why I would be bound to 1. Pay taxes, 2. Observe speed limits 3.License my vehicle……etc ? Statutes not only imply contractual obligations, I would argue that statutes ARE contracts, and the only contracts that separate an advanced society from chaotic anarchy.

    “It recognized that courts must then determine if the contractual “impairment is substantial” (which turns on whether the “change was foreseeable”) It is an unreasonable and disingenuous burden to put on the employee to 1). know the complete history of the retirement system before making a decision to retire when “eligible”. Eligibility itself implies the meeting of a standard that qualifies one for the conditions in place at the time. 2). Operate from an assumption that the system will try to cheat and default on contractual obligations. The employee has a right to expect a good-faith operation of the PERA system in which the rights of the vested retiree are jealousy guarded. It is not reasonable to expect the employee to forsee changes when there is no language that explains that benefits are mutable. Legalese notwithstanding, the employee whose income is negatively affected should be the definer of what “substantial” means, and this would certainly vary widely across the income spectrum. For a person on a pension, with ever increasing costs for the necessities of life, and the attendant needs of healthcare associated with retirement age individuals, almost any reduction in fully-vested benefits is “substantial”.

    “When a PERA member retires, PERA pays the member (and designated co- beneficiary) a monthly pension benefit, the amount of which is based on the member’s retirement age, years of service, and “Highest Average Salary.” ….See above: if “Annual” is not durational language, then “monthly” is also subject to change. Annual means once a year every YEAR, in exactly the same sense that “ monthly means once a month, every month”. If the court should rule in a way that changes the meaning of “annual”, then “monthly” might soon be claimed to mean something less also.

    “Current and future employees will pay the highest contribution rates in PERA’s history (while working up to a decade longer before retirement) and then receive a lower COLA in retirement than current retirees”…..But in STARK contrast to current retirees, will know this in advance, if they take employment in this State. (Naturally, this will have the unintended market effect of steering the most qualified away from our State.) Taking of benefits already fully-vested is in direct opposition to allowing a free market to attract and compete for qualified public employees. Current retirees being stripped of earned benefits is a regressive action that imposes conditions on those who cannot choose to leave the system.

  2. Al Moncrief says:

    COLORADO SUPREME COURT JUSTICE HOOD’S RELATIONSHIPS WITH MARK GRUESKIN AND THE COLORADO DEMOCRATIC PARTY.

    Here are a few potentially relevant pieces of this puzzle:

    Hood contributed to the Bill Ritter for Governor campaign, and “hosted campaign events” for Ritter? Is this true?

    Hood has worked with attorney Mark Grueskin at Isaacson Rosenbaum, P.C.

    Hood was a shareholder at Isaacson Rosenbaum in 2006.

    Isaacson Rosenbaum worked for Colorado PERA during this time period.

    Governor Ritter appointed Hood to the bench.

    Grueskin has provided legal representation for the Colorado Democratic Party.

    Grueskin created the “Colorado Judicial Project.”

    (Grueskin notes that this organization was created to inform the public regarding the merit-based selection process used by the Colorado Commission on Judicial Performance.)

    From WestWord:

    “In the meantime, Grueskin is still in the process of getting the Colorado Judicial Project on its feet; when asked if the CJP would have a web presence, he laughingly admits, ‘I don’t know. We’ve chatted about a number of ways to help educate the public — but you’ve got a roomful of lawyers, for crying out loud. So we have dissenting and concurring opinions, but no decision.'”

    http://blogs.westword.com/latestword/2010/05/mark_grueskin_matt_arnold_tang.php

    Colorado PERA hires former Supreme Court Justice Jean Dubofsky to create a legal opinion justifying the PERA COLA pension contract breach in 2009.

    From CTBC:

    Jean Dubofsky has “represented” or is affiliated with the Colorado Judicial Project?

    “ . . . Matt Arnold appeared on the Your Show television program [moderated by Adam Schrager,] debating former Colorado Supreme Court justice Jean Dubofsky [my note, author of the 2009 Colorado PERA "COLA-taking" legal opinion] representing the ‘Colorado Judiciary Project’ [a legal-establishment special-interest group formed by Democratic state party attorney and Mark Grueskin.]”

    http://www.clearthebenchcolorado.org/tag/devils-advocate/

    Colorado PERA Board of Trustees supports pension contract breach in 2009 and 2010.

    Ritter signs SB10-001 breaking Colorado PERA retiree pension contracts in 2010.

    More from the CTBC:

    “Given Hood’s close associations with Democratic party attorney and frequent Colorado Supreme Court litigant Mark Grueskin, this pick could lead to a number of recusals in some high-profile, politically-charged cases that might come before the Colorado Supreme Court.”

    http://www.clearthebenchcolorado.org/2013/10/26/governor-Hickenlooper-picks-democrat-contributor-hood-as-new-colorado-supreme-court-justice/

    From ColoradoPols.com:

    “Hickenlooper was under some natural pressure to appoint a Democrat to replace the liberal Bender with a similar-minded justice — particularly after his last appointment to fill a vacant seat; in 2011, Hickenlooper chose Jefferson County Republican Brian Boatright to replace the retiring Alex Martinez, a decision that did not sit well with Democrats. Martinez had been a liberal voice on the Colorado Supreme Court, and replacing him with the conservative Boatright may have ultimately been the difference in the Lobato education lawsuit. Selecting Hood, a registered Democrat, keeps the court’s political affiliations about the same: 3 liberals (Hood, Nancy Rice, Gregory Hobbs), 3 conservatives (Allison Eid, Nathan Coates,and Boatright), and 1 “Unaffiliated” (Monica Marquez).

    http://coloradopols.com/diary/51002/hickenlooper-appoints-new-supreme-court-judge

    (My comment: It appears that Justices Eid and Marquez are now recused in the case, Justus v. State.)

    From CTBC:

    “Hood’s history as a Democrat party contributor – he maxed out to Bill Ritter’s 2006 campaign, contributed to the Democrat House Majority Fund, and others – is notable.”

    “Interesting that the Denver Post failed to uncover and/or report on this salient fact.”

    http://www.clearthebenchcolorado.org/20 … t-justice/

    From CTBC:

    “Prior to being appointed to the Denver District Court in 2007, Hood was a long-time contributor to Democrat candidates and causes: hosting events for Bill Ritter’s campaign and contributing the maximum amount ($1,000) in 2006, contributing to the State Democratic Party House Campaign Fund, and supporting Steve Bernard’s failed campaign for District Attorney in 2004.”

    “Hood also has close ties to Democrat Party attorney (and frequent Colorado Supreme Court litigator) Mark Grueskin, dating from their time as colleagues in the politically connected (and politically active) Isaacson Rosenbaum P.C. law firm – associations that may have been related to his removal from the 2011 Congressional redistricting lawsuits, before the case was reassigned to Denver District Court Chief Judge Robert Hyatt . . .”

    http://www.clearthebenchcolorado.org/2013/10/26/governor-Hickenlooper-picks-democrat-contributor-hood-as-new-colorado-supreme-court-justice/

    In Colorado, we have Republicans and Democrats on BOTH sides of this PERA contract breach issue. Some examples of Democrats who opposed the PERA contract breach: Representatives Pace, McFadyen, Merrifield, Massey, Weissman and Primavera. The Pueblo Chieftain quoting from House Minority Leader Sal Pace’s website in February 2010:

    “‘I voted against the proposal because I don’t believe that the problems with PERA need an immediate fix and the solutions proposed unduly placed a burden on our seniors,’ Pace said in a statement on his Web site Tuesday.”

    Many Republicans opposed the PERA pension contract breach in 2010. This fact doesn’t surprise me since so many conservatives ardently defend the Constitution and support the sanctity of contracts in the private sector. A Republican opposing the PERA contract breach:

    Minority Leader and House Finance Committee Chairman Brian DelGrosso, February 23, 2012,

    “I voted against Senate Bill1, and I voted against Senate Bill 1 not because I felt like we didn’t need to fix PERA, I agreed with that part of it, but I voted against Senate Bill1 for the fact that it did adjust some of the COLAs and it did adjust stuff for folks that were already retired and people that were about ready to retire, and to me I felt like that was violating a contract that those people had got into . . . they played by the rules that were of the game at the time, and these folks . . . got up to where they about to retire or were retired, and now all of a sudden we were going to change the rules of game on them after they were done playing. So to me, that was why I voted against Senate Bill 1, because I felt like that violated some of the contractual issues that we had.”

    Colorado PERA active and retired members, continue to fight for your rights under the U.S. Constitution. Write a check to help support this next leg of the battle to maintain the rule of law in our state. This whole Colorado PERA fiasco could have been avoided in 2010 with legal, prospective pension reform. Sadly, the prevailing sentiment that year was to break state contracts and attempt a debt-shift onto a vulnerable group of Colorado residents. (Don’t forget to follow Save Pera Cola on Facebook.)

  3. NotSirWalterScott says:

    “Oh, what a tangled web we weave when first we practice to deceive.” – Sir Walter Scott

    Appears there may be a conflict of interest. Thanks for sharing.

  4. Mary L. says:

    I am a retiree that planned my retirement with a heavy consideration of the 3.5% COLA being a lifetime benefit . It was , to me , a contractual obligation. It’s loss has completely redefined my retirement finances and imposed a large, negative effect on my personal well being. Many would say I’m a young retiree & now at age 55, I have many years ahead to navigate financial vulnerability.
    Keep up the fight – it matters to many of us. I will be sending another check to demonstrate my support while also continuing to voice my concerns. My vote will also be given to those that are friends to this issue. Whether that be for elected politicians or retention votes for judges that “shall” abide by this command or duty that was established in statute.

  5. George Kahler says:

    Al, I can tell you from experience in 2005 my attorney was required to acquire my total pension out 20 years during my divorce settlement. The 3.5% ABI (annual benefit increase plain language ignored and changed without protest) was used. Al thanks for all you do in keeping us informed.

  6. Al Moncrief says:

    CONGRATULATIONS TO OUR NEW COLORADO SUPREME COURT JUSTICE.

    Congratulations to newly-appointed Colorado Supreme Court Justice William Hood III. As a critic of the Colorado General Assembly’s 2010 breach of Colorado PERA pension COLA contractual obligations, I have a more than a passing interest in the Colorado Supreme Court justices who will render a decision in the case (Justus v. State.) In the past, Justice William Hood has been employed by a (now-defunct) law firm, Isaacson Rosenbaum, P.C. that has represented a defendant in the Colorado PERA retiree COLA lawsuit, Justus v. State. In spite of the fact that Justice Hood has worked for Isaacson Rosenbaum P.C. (with an attorney, Mark Grueskin, who has represented the defendant in the case, Justus v. State) I have full confidence in Justice Hood’s judicial objectivity. Nevertheless, in litigation, it is always best that all current and former relationships be openly acknowledged.

    Isaacson Rosenbaum’s work for Colorado PERA:

    “Both the state and PERA filed motions in May asking the court to dismiss six of the eight claims contained in the plaintiffs’ case. The state is represented by the Attorney General’s office; PERA’s lead attorneys are Mark Grueskin and Edward Ramey of Isaacson Rosenbaum, PC.”

    http://coloradostatesman.com/content/991958-ruling-pera-bill-expected-shortly

    “Among those representing PERA are two well-known Denver governmental affairs lawyers, Mark Grueskin and Edward Ramey of the Isaacson Rosenbaum firm.”

    http://www.ednewscolorado.org/2010/05/13/pera-responds-to-retiree-lawsuit/comment-page-1

    Justice William Hood’s work at Isaacson Rosenbaum:

    “Before moving to the bench, Judge Hood was a shareholder at Isaacson Rosenbaum P.C., where he did both civil and criminal trial work.”

    http://www.law.du.edu/index.php/profile/judge-will-hood

    “Hood, 50, has been a Denver District Court judge since 2007. Prior to becoming a judge, Hood practiced at the private firm Isaacson Rosenbaum.”

    http://www.denverpost.com/breakingnews/ci_24389795/hickenlooper-appoints-new-colorado-supreme-court-justice

    “Prior to becoming a judge, Hood was in private practice at Isaacson Rosenbaum P.C., where he was a shareholder from 2005-2007 and of counsel in the litigation department from 2003-2005.”

    http://kdvr.com/2013/10/25/hickenlooper-will-name-william-hood-to-colo-supreme-court/

    Apparently, in 2006, Isaacson Rosenbaum was representing Colorado PERA (while Justice Hood was a shareholder):

    “Colorado PERA files motion challenging (2006) ballot initiative.”

    “The motion was filed on behalf of attorneys Mark G. Greuskin and Edward T. Ramey of the Denver Law Firm Isaacson Rosenbaum, P.C.”

    https://www.copera.org/pdf/NewsReleases/2006/Initiative.pdf

    Law Week online:

    “Redistricting Judge, Dem Lawyer Worked At Same Firm.”

    “Asked about a possible conflict between himself and the judge, Grueskin said, ‘Even before you get to the issue that he and I were formerly colleagues, he may have a docket that’s full.'”

    “Grueskin explained that the redistricting case must be decided well before the Feb. 7 caucuses, and ‘typically there will be some reallocation if necessary because not every judge’s docket would accommodate that.’”

    http://www.lawweekonline.com/2011/05/redistricting-judge-dem-lawyer-worked-at-same-firm/

    From clearthebenchcolorado:

    “However, the case may not remain with Judge Hood, due to his past association (working together at the same law firm) with Democratic attorney Mark Grueskin, as also reported by Law Week online: Denver District Judge William Hood, who was randomly assigned to hear Colorado congressional redistricting lawsuits filed Tuesday by Republicans and Democrats, once was a law-firm colleague of the lead attorney for the Democratic side.”

    “Before his appointment to the Denver bench in 2007, Hood worked at Isaacson Rosenbaum, the firm that until recently employed Democratic Party lawyer Mark Grueskin.”

    http://www.clearthebenchcolorado.org/tag/colorado-judiciary-project/page/2/

    “ . . . Matt Arnold appeared on the Your Show television program [moderated by Adam Schrager,] debating former Colorado Supreme Court justice Jean Dubofsky [my note, current full-time activist and author of the 2009 Colorado PERA "COLA-taking" legal opinion] representing the ‘Colorado Judiciary Project’ [a legal-establishment special-interest group formed by Democratic state party attorney and Mark Grueskin.]”

    http://www.clearthebenchcolorado.org/tag/devils-advocate/

    Denver Post:

    “Gov. John Hickenlooper on Friday announced his appointment of Denver District Court Judge William Hood III as the 103rd Colorado Supreme Court justice.”

    “Hood will fill the vacancy created next year when Supreme Court Chief Justice Michael Bender retires. Bender, who will step down Jan. 7, has served on the Supreme Court since 1997 and as chief since 2010.”

    “‘He (Hood) has consistently demonstrated an ability to fairly apply the law while administering justice,’ Hickenlooper said. ‘His breadth of experience on both sides of the courtroom is invaluable to informed decisions.'”

    “Hood, 50, has been a Denver District Court judge since 2007. Prior to becoming a judge, Hood practiced at the private firm Isaacson Rosenbaum. He also served as a prosecutor for the 18th Judicial District Attorney’s office.”

    http://www.denverpost.com/breakingnews/ci_24389795/hickenlooper-appoints-new-colorado-supreme-court-justice

    Isaacson Rosenbaum’s recent (2011) closure:

    “Venerable 50-year-old Denver law firm Isaacson Rosenbaum will wind up operations and close at the end of June, people familiar with the situation today told Law Week Colorado.”

    “The firm, which lists 23 shareholders and five associates on its website, was a victim of the 2008 economic downturn, a heavy emphasis in real estate law and an expensive office lease at the recently renovated 1005 17th St.” “It wasn’t immediately known where all of its top attorneys would land.” “Ramey and Lawrence joined Heizer Paul Grueskin, and Corrada is moving to Lapin & Lapin.”

    http://www.lawweekonline.com/2011/06/breaking-isaacson-rosenbaum-will-close-at-months-end/

    CBSLocal.com:

    “The 50-year-old Hood has been a Denver District Court judge since 2007. He’s also an adjunct professor at the University of Denver.”

    “Hickenlooper said geography was a consideration but that his top priority was finding the best fit to represent all of Colorado.”

    http://denver.cbslocal.com/2013/10/25/william-hood-iii-named-new-colorado-supreme-court-justice/

    From Justice Hood’s Colorado Court Biography:

    “Some of his legal writing on trial work and criminal procedure has been published by the Colorado Lawyer and the Virginia Law Review. Judge Hood is also a certified instructor for the National Institute of Trial Advocacy and a past member of the Denver Bar Association’s Board of Trustees.”

    http://www.courts.state.co.us/Bio.cfm?Employee_ID=560

    Justice William Hood also has experience with Colorado PERA litigation:

    From “Tracey Lawless v. Standard Insurance Company and Colorado PERA”:

    “In sum, Standard’s Motion to Dismiss Plaintiff’s first and second claims is denied. Summary judgment enters in favor of PERA and against Plaintiff on Plaintiff’s first, second, and third claims for relief.”

    “Statutory interpretation is a question of law. Sperry v. Field, 205 P.3d 365, 367 (Colo. 2009). ‘A reviewing court begins the analysis with the plain language of the statute. If the statute is clear and unambiguous on its face, then the court need look no further.’ Id. The statutory scheme should be considered as a whole, giving ‘consistent, harmonious and sensible effect to all its parts.’ People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002).”

    (My comment: The plain language of the Colorado PERA statutes identifies accrued, “automatic,” Colorado PERA COLA benefits as a contractual obligation of Colorado PERA-affiliated employers.

    According to the September 29, 2010 version of the Legislative Drafting Manual, the Colorado Legislature’s lawyers believe that “shall” means mandatory. The lawyers have another word that they use if they want to indicate that an action is discretionary. That word is “MAY.”

    Colorado Legislative Drafting Manual, Revised 9/29/2010:

    Drafting Manual, page 5-15 – “In the statutes, ‘shall’ should be used to indicate a command.”

    Drafting Manual, page 5-18 – “Use the word ‘shall’ in statutory directions or requirements.”

    Drafting Manual, page 5-19 – “‘Shall’ indicates a command.”

    Drafting Manual, page 5-19 – “Use ‘may’ to grant discretion.”

    The provision in Colorado law providing the contracted Colorado PERA 3.5 percent COLA benefit (prior to its retroactive alteration by SB10-001) read:

    Colorado Law – Section 24-51-1002 (1), Colorado Revised Statutes, “ . . .the cumulative increase applied to benefits paid SHALL be recalculated annually as of March 1 and SHALL be the total percent derived by multiplying three and one-half percent, compounded annually, times the number of years such benefit has been effective . . .”

    Under Colorado law, members of Colorado PERA who purchase PERA service credit SHALL receive Colorado PERA pension benefits in effect at the time of the purchase:

    Colorado Law – Section 24-51-502 (3), Colorado Revised Statutes, “Service credit purchased by members . . . SHALL be subject to the benefit provisions in effect for the existing member contribution account.”

    In November of 2011, the Colorado General Assembly’s Legislative Drafting Manual was revised. Drafting rules (on pages 5-16 through 5-20) relating to use of the word “shall” in Colorado law were changed. According to the November 29, 2011 version of the Legislative Drafting Manual, “shall” now means “has a duty to.” (Note that the date of revision on the Legislative Drafting Manual is found on the final page of the document.)

    From the November 29, 2011 Legislative Drafting Manual:

    “Shall” means that “a person ‘has a duty to.’”

    “(a) Shall. Use ‘shall’ to impose a duty on a person. ‘Will’, ‘must’, and ‘should’ should not be used as a substitute for ‘shall’.”

    “(II) When using ‘shall’ to mandate an action in which the outcome is in the discretion of the actor, include alternative actions the actor may take:

    Avoid: The commissioner shall approve an application within thirty days.

    Write: The commissioner shall approve or deny an application within thirty days.

    (c) May. Use ‘may’ to permit or grant discretion or authority with regard to a thing or person.”

    In my mind, it doesn’t really matter whether Colorado PERA is “commanded” to provide the 3.5 percent contracted COLA benefit, or Colorado PERA “has a duty” provide the 3.5 percent contracted COLA benefit. Under either set of legislative drafting definitions, Colorado PERA is required by law to pay Colorado PERA retirees their contracted, accrued 3.5 percent COLA benefit as deferred compensation. Thus, Colorado PERA and the State of Colorado are currently in breach of contract.)

    From Tracey Lawless v. Standard Insurance Company and Colorado PERA:

    “If the statute is ambiguous, the court looks to the statute’s legislative history, the consequences of a given construction, and the overall goal of the statutory scheme to determine the proper interpretation of the statute.” Sperry 205 P.3d at 367. Therefore, it is appropriate for me to look beyond the plain meaning of the words, including the statute’s legislative history, the consequences of a given construction, and the overall goal of the statutory scheme to determine the proper interpretation of the statute.”

    http://www.svs-law.com/_images/Order%20MSJs%20&%20MTD%20010412.pdf

    Legislative history of the PERA COLA benefit:

    March 24, 1993 (1:32 PM – 2:28 PM)

    Rob Gray, Director of Government Relations, Colorado PERA testifying to the Legislature’s House Finance Committee in regard to the “automatic” PERA COLA benefit under consideration [in House Bill 93-1324]: “The PERA Board does support this bill.” “We felt like it is something that is good pension policy . . . that it makes sense . . . THAT IT IS MAKING PERMANENT CHANGES, and also that it does help employers which is one of the goals of the bill.” Rob Gray states that the proposed COLA “adds predictability for current and future retirees, people looking at leaving might look at this and say now I know how my future increases are going to be determined . . .”. Rob Gray characterizes the “automatic” PERA COLA benefit as a Colorado PERA liability: “when a change in benefits is added, like this bill, it extends out the period for paying off that unfunded liability.” If you listen to the recording of this meeting, you will also hear a member of the House Finance Committee refer to the Colorado PERA COLA provision under consideration as a pension benefit that is “guaranteed,” “now and in the future.” [Note that the contracted PERA COLA benefit adopted by the committee was in later years improved by the Colorado General Assembly to flat 3.5 percent level, constitutionally permissible as this "improvement" did not impair PERA pension contracts.])

    Justice Hood’s Judicial Performance Review:

    “As a result, prior to taking his seat on the bench, Judge Hood completed several courses in domestic relations matters and read extensively on the subject to advance his skills in this area. Judge Hood was highly rated by the attorneys in the areas of case management, overall application and knowledge of the law, communication and demeanor. The non-lawyers surveyed found him to be fair, compassionate, and an effective communicator.”

    http://www.coloradojudicialperformance.gov/retention.cfm?ret=719

    Justice William Hood is knowledgeable on the subject of spousal maintenance:

    “- Spousal Maintenance 2013 – Gary Polidori, Denise Mills , and Hon. William Hood III.”

    http://cle.cobar.org/HomeStudies/productinfo/productcd/FL080913D.aspx#.Umvwbr7na4M

    “Judges, including William Hood of the 2nd Judicial District and Angela Arkin of the 18th Judicial District, helped craft the law, so that it would work for families and courts in the way that those who drafted the law intended.”

    http://www.denverpost.com/breakingnews/ci_24340928/new-law-changes-alimony-landscape-divorcing-colorado-couples

    “New law changes alimony landscape for divorcing Colorado couples.”

    “Divorcing couples will face dramatic changes — and significant uncertainty — related to alimony after a new state law goes into effect on Jan. 1.”

    “Judges, including William Hood of the 2nd Judicial District and Angela Arkin of the 18th Judicial District, helped craft the law, so that it would work for families and courts in the way that those who drafted the law intended.”

    http://www.canoncitydailyrecord.com/ci_24346211/new-law-changes-alimony-landscape-divorcing-colorado-couples

    From the recent Act, House Bill 13-1058:

    “CONCERNING GUIDELINES FOR THE DETERMINATION OF SPOUSAL MAINTENANCE.”

    “(c) (I) ‘GROSS INCOME’ MEANS INCOME FROM ANY SOURCE AND INCLUDES, BUT IS NOT LIMITED TO:
    (H) PENSION PAYMENTS AND RETIREMENT BENEFITS ACTUALLY RECEIVED THAT HAVE NOT PREVIOUSLY BEEN DIVIDED AS PROPERTY IN THIS ACTION, INCLUDING BUT NOT LIMITED TO THOSE PAID PURSUANT TO ARTICLES 51, 54, 54.5, AND 54.6 OF TITLE 24, C.R.S., AND ARTICLE 30 OF TITLE 31, C.R.S.”

    http://www.leg.state.co.us/clics/clics2013a/csl.nsf/fsbillcont2/DF14C3B93C0EBF9387257A8E0073C4E0/$FILE/1058_enr.pdf

    “Like the child support statute, the list defining income is lengthy, and can include most sources, such as income from employment, self employment, retirement or pension pay . . .”

    http://www.denverdivorceattorneyblog.com/2013/03/changes-coming-related-to-colo-1.html

    “Accrued or vested retirement benefits are community property. This means they need to be divided in a divorce.”

    http://www.legalzoom.com/divorce-guide/retirement-benefits-divorce.html

    “You can value this (defined benefit pension) plan in one of two ways. First, an actuary or accountant can mathematically compute the present-day value of the future income stream from the plan. Second, rather than using a present-day cash value, you can divide the future income stream by a Domestic Relations Order. The present-day cash value of the retirement benefit may be a substantial amount, especially for an employee who has participated in the plan for a long period of time. A divorcing spouse may benefit from using this valuation method as a tactic to encourage the other spouse to trade an interest in the pension for a different asset.”

    “Some states and some judges will not value a defined benefit plan by the present-day cash value method. In these instances, the court may choose to divide the pension account by a Domestic Relations Order rather than award the pension to the participating spouse.”

    http://smartdivorce.com/articles/retirement.shtml

    If the 3.5 percent Colorado PERA COLA is not a contractual obligation of Colorado PERA-affiliated employers, and can be legally “clawed back,” must all past Colorado divorces that have involved a division of PERA annuities be revisited?

    From saveperacola.com:

    “Finally, it appears that Judge Hyatt has previously ruled that the statutory PERA COLA provisions are a contractual obligation of PERA plan sponsors.” “A comment from ‘Alan B’ was posted in the on-line version of the Denver Post regarding his divorce case. If Alan’s post is authentic and accurate it makes one wonder whether or not Judge Hyatt believes the COLA (aka, annual benefit increase) is contractually protected. Here’s what Alan wrote: ‘What truly confounds me in this case is that Judge Hyatt ruled the opposite in my divorce case. Which only shows what I have read before that it takes the courts 5 to 10 years to figure something out. He ruled that my wife was entitled to her share of PERA discounted at the legal rate assuming that PERA would pay my pension compounded at 3.5 percent for the rest of my life. Her lawyers argued that her social security could not be guaranteed yet the PERA could be. Judge Hyatt ruled for her and in this case he ruled the opposite of what he had ruled in the current case. Is the 3.5 percent annual adjustment guaranteed or not, Hyatt has spoken on the record, yes and no.’”

    How can the 3.5 percent PERA COLA obligation be recognized as a contractual obligation in Colorado divorce cases by Judge Hyatt, if the 3.5 percent PERA COLA obligation is not itself a contractual obligation?

    Coincidently, Mark Grueskin’s daughter (Abigail Grueskin) has also worked for Colorado PERA. She is young, talented and just beginning her professional life.

    “Brainstormed, edited, and assisted in the editorial process of Colorado PERA’s newly created sub-branding effort, ‘The Dime Colorado’.”

    . . . as well as for Isaacson Rosenbaum, “Records Assistant, Isaacson Rosenbaum P.C., Facilitated the implementation of the firm’s record retention and storage policy. Interacted with various lawyers and staff members to acquire accurate data”

    http://www.linkedin.com/pub/abigail-grueskin/50/723/482

    More relationships:

    “Par Sponsors: Litvak Litvak Mehrtens and Epstein, P.C. (by Steve Epstein), Mark Grueskin & Lola Farber Grueskin & Family, Sam Mamet & Judith Cassel-Mamet & Family . . .”

    http://www.micahdenver.org/blog/?p=623

    In the rarefied environment of the Colorado legislative arena many of the key players are acquainted.

    Sam Mamet is Executive Director of the Colorado Municipal League (CML.) Some of CML’s municipal members have benefited from the Colorado General Assembly’s use of approximately $700 million in state revenue to pay off legacy local government pension debt (Old Hire Fire and Police pension obligations) that are not the contractual obligation of the State of Colorado. Many of these past legislative appropriations, to cover Colorado local government debts, were made during years in which the Colorado General Assembly failed to pay its full Colorado PERA bill (ARC.) An appropriation of $142 million in state revenue was made for this purpose at the 2013 legislative session.

    From KDVR:

    “House Republican leaders are floating a proposal to repay a longstanding debt (My comment, this is not a state ‘debt,’ sloppy reporting) to the state’s Fire and Police Pension Association in full as a way to get some GOP lawmakers to vote in favor of the $20 billion state budget for next year, which will be up for debate in the House on Thursday.” “‘It’s (House Minority Leader) Waller’s effort to buy some Republican votes,’ one GOP lawmaker told FOX31 Denver Tuesday.” “Waller, who is almost certain to run for Attorney General (next) year, would like to be able to demonstrate that he leads a group of lawmakers who are pragmatic and responsible; and helping forge a bipartisan budget compromise would help him make that case.”

    http://kdvr.com/2013/04/02/republicans-considering-pension-deal-hoping-for-bipartisan-budget-vote/

    FPPA CHIEF EXECUTIVE OFFICER: THESE LOCAL GOVERNMENT PENSIONS ARE NOT A CONTRACTUAL OBLIGATION OF THE STATE OF COLORADO.

    September 19, 2012, FPPA testimony (Dan Slack, CEO, FPPA) regarding the obligation of the State of Colorado to pay for local government “Old Hire Police Officers Pension Plans” to the Colorado General Assembly’s Police Officers and Firefighters Pension Reform Commission (29 minutes into the hearing):

    “So the State has made certain commitments, but has been very careful not to make binding obligations upon itself as the state to provide some assistance with funding for these plans.”

    Link:

    http://www.leg.state.co.us/clics/clics2013A/cslFrontPages.nsf/Audio?OpenPage

    Colorado Municipal League:

    “Mark Grueskin is a partner with the Denver law firm of Heizer Paul Grueskin LLP.”

    “Formerly a political campaign manager, Mark has worked as a lawyer on election related issues for more than 25 years.”

    “Mark served as Deputy Legislative Director for the Governor of Colorado and as the Governor’s Legal Counsel before re-entering private practice.”

    http://www.cml.org/uploadedFiles/CML_Site_Map/_Global/training/atty_bios.pdf

    Colorado PERA active and retired members. Continue to support public pension contractual rights and the rule of law in Colorado. Contribute at saveperacola.com. “Friend” Save Pera Cola on Facebook!

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