Plaintiffs will not appeal Colorado Supreme Court Decision

January 20, 2015

Gary R. Justus, et al. v. The State of Colorado, et al.

The four plaintiffs in the case to overturn Senate Bill 10-001 concerning reductions in promised annual benefit increases (ABI, aka COLA) have decided to not appeal the case to the U.S. Supreme Court. Such an appeal is termed a writ of certiorari.

Plaintiffs’ attorney William T. Payne released to Save PERA COLA the following rationale for not appealing the issue:

“…the court’s opinion was based on Colorado state law. An article from a law firm which has a robust Supreme Court practice notes:

A sure-fire way to guarantee rapid denial of certiorari is to file a petition disputing findings of fact rather than determinations of law; presenting questions of state rather than federal law; or asking for review of a decision that rested on adequate and independent state law grounds even if the court below also addressed a federal issue. http://www.appellate.net/includes/print.asp?dir=articles&file=petit799.asp&contentarea=yes

We also noted if plaintiffs ultimately lose this case, plaintiffs may be liable for “costs” such as court reporter fees for transcripts. While “costs” are small in this case, they would still run into the thousands of dollars (according to Defendants), because there were a couple of conferences or hearings before courts.

We have obtained a tentative agreement from the Defendants that they will not seek “costs,” as long as we do not file a petition for review in the U.S. Supreme Court. While Defendants are quite confident that the U.S. Supreme Court would not grant us any relief were we to file a petition for review, they would prefer if all parties could avoid the additional time and expense necessary to brief any such petition. We strongly recommend confirming this agreement with the Defendants, and would like you to accept our recommendation.

Please call if you have any questions.

Sincerely,

William T. Payne”

That tentative agreement has now been finalized and we thus can release this outcome to you. We are most disappointed in the Colorado Supreme Court’s ruling and what it means for PERA retirees. The mid- to long-term damage to retirees’ financial stability is significant. Moreover, the legal precedent that passage of Senate Bill 1 has set will enable the legislature to again cut our annual benefit increases below 2%. When inflation returns to historical levels, retirees and their pensions will not be protected from it. PERA’s well documented promises of a “guaranteed 3.5% annual increase” were simply lies that finally came to light when PERA reconciled their many past mistakes into the Senate Bill 1 “fix.” PERA attorneys then successfully argued in court against PERA’s previous pronouncements that the 3.5% increases were part of the pension contract with those who had already completed their part of the deal. They also argued that previous legislative changes in annual increases (all positive) created precedent for doing so again, but this time they were negative changes. We do not believe that the PERA Board has upheld its fiduciary duty to protect the interests of its active or retired members. Nor do we believe that the unions that lobbied in favor of SB1 fairly supported their members who willingly paid annual dues over their careers.

Nonetheless, the Supreme Court has spoken and we must respect their right to do so. It’s time to move forward. We are now investigating how we can better hold PERA accountable in the future to demand full funding of the existing benefits structure from the legislature, protect what we have left, and educate current and future employees about the risks of choosing to work in Colorado PERA covered employment. We’ll let you know more in the future.

We thank our attorneys Bill Payne and Richard Rosenblatt for their incredible efforts to win this case. We could not have wished for better representation.

Gary R. Justus, plaintiff and Rich Allen, President of Save PERA COLA