THE COLORADO SUPREME COURT . . . "POLITICIANS IN BLACK ROBES." (AS IT TURNS OUT.)
"Truth is the daughter of time, not of authority," Bacon.
For decades I refused to believe it, but it is now incontrovertibly established. The Colorado Supreme Court is indisputably a political actor. Our Colorado Supreme Court exists to serve Colorado political parties. At present, the Colorado Supreme Court is more rightly considered an adjunct of the Colorado Legislative Branch, than a check on the Colorado Legislative Branch. Rather than "truth-seeking," the Colorado Supreme Court now sees its role as "political-outcome seeking." Litigants successfully use the Colorado Supreme Court to achieve political purposes. In the Ralph Carr Justice Center, rather than meeting impartial guardians of the law, litigants meet their political allies on the bench.
“I think there are many who think of judges as politicians in robes. In many states, that’s what they are.” “They seem to think judges should be a reflex of the popular will.”
Sandra Day O'Connor
The Colorado Supreme Court has accepted its role as a political tool, and recognizes no constitutional limits on the authority of the Colorado Legislative and Executive branches.
In this article, I provide an example of the political and partisan role of the Colorado Supreme Court. I describe a case in which the Colorado Supreme Court summarily erases billions of dollars of debt owed by Colorado state and local governments. That is, one branch of Colorado state government relieves another branch of Colorado government of its legal debts.
The case involves Colorado statutory contracts that create financial obligations on the part of Colorado governments. Over decades, political considerations induced the Colorado Legislature to mismanage the financial obligations. In recent years, the terms of these statutory contracts were deemed politically inconvenient and politically unpopular. The Legislative Branch asked the Colorado Supreme Court to discard the contracts.
In 2010, the Colorado Legislative Branch requested that the Colorado Supreme Court grant this political favor by ignoring the Contract Clause of the US Constitution, ignoring the history of legislative mismanagement of these state financial obligations, and relieving Colorado governments of their accrued legal debts. No trial, no discovery, billions of dollars seized by the state.
In granting this political favor, sanctioning the breach of Colorado PERA pension contracts, the Colorado Supreme Court was forced to ignore its own long-standing case law precedent, the court failed to conduct a "contract analysis," the court ignored evidence of Colorado PERA's attorneys stating that the pension benefit was indeed a Colorado PERA contractual obligation, the court ignored the bill (SB10-001) sponsor's testimony that the pension benefit was in fact a Colorado PERA contractual obligation, the court ignored recorded legislative history of the contractual nature of the public pension benefit, the court failed to engage in the "heightened scrutiny" of the abandonment of state financial obligations required under federal case law (US Trust) and finally, the court embraced a discredited Denver District Court decision that did not bother to mention Colorado's on-point public pension case law. In the United States, political connections can be used to quash legal investigations of banking fraud, and political connections can be used to summarily erase billions of dollars of government debt.
In this article, I address the Colorado Supreme Court's lack of independence, integrity, and impartiality. I provide a brief history of the efforts of the Colorado Legislature and the Colorado Supreme Court to escape Colorado governmental financial obligations. I comment on the recent (October, 2014) Colorado Supreme Court Decision itself, which summarily erased these billions of dollars of Colorado public sector debt. I highlight some of the numerous factual and logical errors that exist in the Colorado Supreme Court's Decision in the case. I express incredulity at the Colorado Supreme Court's willful ignorance of public pension administration, knowledge that was necessary to any court claiming to "seek truth" in the case.
Does it surprise you that we do not have the "rule of law" in Colorado? I was very surprised to learn this. I believed that the Colorado Supreme Court judges were beyond political influence. I believed that they would examine all evidence and give weight to legal precedents set by former judges on the Colorado Supreme Court. I was wrong. It turns out that "corruption" exists in government to the same extent it exists in the private sector. No trial, no discovery, government forgives its own debts, billions of dollars seized.
The Colorado Judiciary had an obligation to ensure that all evidence in the case was examined prior to breaking Colorado PERA pension contracts. They ruled in ignorance. This ignorance may have been willful. Rather than honoring their debts, Colorado PERA-affiliated governments will now inflate away that debt courtesy Colorado Supreme Court.
My intent in writing this article is to enhance the public record of, and further document, what I consider to be one of the greatest "crimes" in Colorado history.
Scripta manent, verba volant.
On October 20, 2014, the Colorado Supreme Court ruled that Colorado PERA pensioners have no contractual right to their public pension COLA benefits. Yet, here we have documentation of Colorado PERA's own lawyers acknowledging Colorado PERA's contractual obligation to pay the PERA COLA as recently as 2009.
December 16, 2009
Colorado PERA officials in written testimony to the Joint Budget Committee: “The General Assembly cannot decrease the COLA (absent actuarial necessity) because it is part of the contractual obligations that accrue under a pension plan protected under the Colorado Constitution Article II, Section 11 and the United States Constitution Article 1, Section 10 for vested contractual rights.”
Discover the true nature of Colorado state government at saveperacola.com.
Read the complete article at http://coloradopols.com/diary/64487/the-co…
Stacy writes: "Algernon Moncrief is a PAID TROLL for the Teachers Union."
Stacy, I laughed out loud when I read your comment. I am also sure that Colorado's teacher union (CEA) representatives will also laugh out loud when they read your comment. Why?
Colorado's public sector unions supported SB10-001, a bill enacted by the Colorado Legislature three years ago which broke Colorado PERA pension contracts. I am holding their feet to the fire, so to speak. For three years I have been drawing attention to the complicity of Colorado's public sector unions in the breach of Colorado state and local government contracts in 2010. You can now see why your comment qualifies as mirth of the highest order! Visit saveperacola.com for the full story. (Best to do some simple research prior to making a claim Stacy.) Al
Colorado's debt for accrued, contracted Colorado PERA pension benefits has already accumulated. It will be paid in any event. It doesn't matter what governmental pot this debt is paid from, income taxes, sales taxes, mineral lease revenues, etc. The PERA debt is a contractual obligation of the State of Colorado (and many Colorado local governments.)
Nor will the level of this PERA debt change if the education funding measure (Amendment 66) fails at the polls next month. But, If a person chooses to oppose Amendment 66 because it raises new state revenues, to be consistent that person must oppose any activity that raises new state revenues, such as: federal assistance to the State of Colorado, or the location of new military facilities in Colorado, or the expansion of new military facilities in Colorado, or the growth of the Colorado economy. These activities also "make new revenue available to meet contracted PERA pension obligations."
If the City Attorney could read Colorado statutes and case law, perhaps the City of Colorado Springs would not be in the midst of its Memorial Hospital/PERA legal fiasco. The city would never have attempted to escape its pension debts. Spoiler alert Colorado Springs residents, you will lose this case shortly - prepare to cough up one-quarter billion.
Colorado Springs employees, ESCAPE!
I REMEMBER SUGGESTING THAT MELCHER REVIEW COLORADO PUBLIC PENSION CASE LAW LAST YEAR - DID HE?
COLORADO COURT OF APPEALS CONFIRMS COLORADO PERA PUBLIC PENSION COLA BENEFITS AS CONTRACTUAL.
The Colorado Court of Appeals has reversed and remanded an initial District Court ruling that denied the contractual status of public pension COLAs in Colorado. The Court of Appeals confirmed that Colorado PERA pension COLA benefits are a contractual obligation of the pension plan Colorado PERA and its affiliated public employers. A huge victory for public sector retirees in Colorado! The Colorado Legislature may not breach its contracts and push taxpayer obligations onto the backs of a small group of elderly pensioners.
The lawsuit is continuing. Support pension rights in the U.S. by contributing at saveperacola.com. Friend Save Pera Cola on Facebook!
In 1977, the U.S. Supreme Court (in U.S. Trust Co, 431 U.S.) clarified that state attempts to impair their own contracts, ESPECIALLY FINANCIAL OBLIGATIONS, were subject to greater scrutiny and very little deference because the STATE'S SELF-INTEREST IS AT STAKE. As the court bluntly stated:
“A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a state could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all . . . Thus, a state cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend the money to promote the public good rather than the private welfare of its creditors."
For more resources to protect public pension benefits visit saveperacola.com.
COLORADO PERA IS INDEED MOVING TOWARD VENTURE CAPITAL . . .
GOV. HICKENLOOPER RAIDS PERA PENSION FUNDS FOR CORPORATE WELFARE.
PERA BOARD GRANTS ACCESS TO PERA TRUST FUNDS TO PRIVATE BUSINESSES IN COLORADO.
From PERA’s website:
“We heard from businesses around the state during the development of the Colorado Blueprint that increased access to capital is critical to their success and that of our state’s economy,” said Gov. John Hickenlooper. “The creation of the Colorado Mile High Fund will improve that access to capital and we are pleased that Colorado PERA’s partnership will benefit and help grow companies here in Colorado.”
It is not logically possible for the PERA Board to claim that the PERA Trust Funds have faced, or face, an “actuarial emergency” in recent years and simultaneously enter into an arrangement in which the investment performance of those PERA Trust Funds may be compromised (to any degree.)
News flash for our “businessman” Governor: By definition, placing an artificial, political restriction on investment options for a portion of the PERA Trust Funds (regardless of size) denies PERA members and retirees the benefit of the most productive use of those funds. Interference with the work of Colorado PERA’s investment team is ill-advised and the burden of restoring any resulting loss of capital will fall on Colorado taxpayers.
From the Colorado PERA statutes:
“As fiduciaries, such trustees shall carry out their functions solely in the interest of the members and benefit recipients and for the exclusive purpose of providing benefits and defraying reasonable expenses incurred in performing such duties as required by law.”
Is the provision of corporate welfare through the “Colorado Mile High Fund” in conformance with the fiduciary obligation of the Colorado PERA Board of Trustees to act “for the exclusive purpose” of providing PERA pension benefits? How does this scheme guarantee improved investment performance for this tranche of the PERA trust funds for beneficiaries? I believe this action represents yet another clear breach of fiduciary duty by the PERA Board of Trustees.
Does the Governor understand that the PERA Trust Funds belong to the beneficiaries of the trust? Does the Governor understand that the PERA Trust Funds are not public property to be used to meet public policy goals? (Politicians have been trying to gain access to this “pile of money” for decades.)
If the members of the PERA Board of Trustees would grow a backbone and resist political interference, we might have avoided the recent SB 10-001 debacle, the breach of retiree contracts, the “legal morass” it engendered, and this most recent assault on the integrity of the PERA Trust Funds.
If Colorado businesses are desperate for capital why do these businesses not take advantage of available historically low market interest rates? Is it simply the case that these businesses are considered too great a risk by private lenders? This risk must be assumed by the beneficiaries of a public pension fund? Public pensions should be forced to invest in businesses that the private sector won’t touch?
“The Colorado Mile High Fund will be a new pool of growth capital for investments in Colorado businesses. Over time, the amount of money available for such emerging entrepreneurs and management teams has diminished in Colorado, and PERA saw the mutual benefit providing much-needed capital for Colorado’s business community,” said PERA Director of Alternative Investments Tim Moore.
How is it the responsibility of Colorado PERA members and retirees to redress this shortfall of funding for Colorado entrepreneurs by accepting a less favorable risk/reward ratio for a portion of their PERA Trust Fund property?
“This is good for Colorado and for PERA,” added PERA Chief Investment Officer Jennifer Paquette.
The duty of the PERA Chief Investment Officer is not to achieve what is “good for Colorado,” or “good for PERA” administrators. The duty of the Chief Investment Officer is to invest the PERA Trust Funds prudently . . . and in a manner that offers the greatest return potential at the least portfolio risk.
However, I believe that Paquette’s statement here is politically necessary for her, and I find it sad that the PERA Board places her in this situation. Paquette should be left alone to do her job free from political interference. I believe that if she could speak freely, she would state, as an “investment professional,” that the artificial limitation of investment opportunities for a tranche of PERA’s trust funds is NEVER “good” for the beneficiaries of the Trust Fund. I place only a modicum of blame for this blossoming fiasco on Paquette. I understand that as a condition of employment she must do the bidding of an invertebrate PERA Board.
If the geographical restriction of PERA Trust Fund investment options is a prudent investment philosophy will the PERA Board please explain why this policy has not been in place at Colorado PERA for decades? Why the artificial, geographical restriction of investment options is summarily rejected by securities industry professionals?
How did the PERA Board go about determining the geographical investment boundaries that offer the greatest risk/reward potential for the investment our funds? What analysis was conducted? What advantages did Colorado’s borders offer over limiting investment of the funds to venture capital or private equity opportunities in Massachusetts? California? Australia?
Complete PERA propaganda available here:
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