If you’ve been following along with us here, you know there have been several legal challenges to changes to the state pension system. Currently, there are three cases still pending in the Superior Court. Here is an update on all three cases from attorney Glenn Milner, of Molan, Milner and Krupski.
1. AFT case (Merrimack County, Judge Smukler) NEXT ACTION – filing updated briefs by Dec. 14, 2012.
This is the first case we filed back in August 2009 (amended in May 2010) challenging the pension changes effected by HB1645 (2008) and HB653 (2007). This case focuses on changes to the definition of “earnable compensation” (specifically the removal of “other compensation” as a pensionable benefit – the big items here being clothing allowances and payments in lieu of taking health insurance) and the changes to the language regarding COLA’s (as well as the funding mechanism for the “Special Account”).
After getting bogged down in the trial court over class certification issues, we attempted to move the case directly to the NH Supreme Court on an interlocutory basis (without ruling, prior to final judgment) in order to get the matter resolved more quickly. However, in September (this year) the Supreme Court denied our request and sent the case back to Judge Smukler.
We had a status conference with Judge Smukler on Nov. 19 and all agreed to submit updated briefs to the court on or before Dec. 14 for final ruling with expected appeals to follow. We expect that Judge Smukler will substantially follow the ruling of Judge McNamara (see below) and find that there is indeed a contract in RSA 100-A between the State and public employees and that the Legislature may not constitutionally alter the terms of that deal. Still ahead, however, is the fight over who is vested – 10 year folks or those who have attained permanent employment status. Stay tuned.
2. NH3 (Merrimack County, Judge McNamara) NEXT ACTION – status conference scheduled Jan. 17, 2013.
This is the challenge we filed in June 2011 after the passage of HB2 (2011) involving the increase in employee NHRS rates and the artificial lowering of the employer rates. In February 2012, Judge McNamara ruled in our favor and held that the increase in employee rate for vested NHRS members is unconstitutional. The judge also ruled that vesting occurs after ten years of service, a ruling we strongly disagree with (settled NH case law holds that vesting occurs after permanent employment status) and we will appeal this ruling to the NH Supreme Court.
The coalition agreed with counsel’s suggestion that we move this case by “parking” the issue of employer rates (for now) and appealing the case on an interlocutory basis to the NH Supreme Court (especially in light of the very favorable ruling by the Supreme Court in the Cloutier case ). However, like the AFT case, the NH Supreme Court, in September 2012, declined to accept the appeal on the suggested expedited basis and sent the case back to Judge McNamara who scheduled a conference in January. We will urge the Court to issue a final ruling (there are issues to resolve involving the injunction/attorney fees, etc.) so as to get the case to the NH Supreme Court as soon as possible.
3. NH4 (Hillsborough County, Judge Abramson) NEXT ACTION – this week, filing proposed interlocutory appeal statement.
This case was filed in February 2012 following the effective date of the HB2 (2011) changes to NHRS pension benefits. Here we challenge the changes in earnable compensation (including the averaging of extra and special duty pay), the Group II changes in age and service requirements, the change from 3 to 5 years for calculating the “Average Final Compensation,” the new “maximum benefit” level, and the repeal of the gainful occupation exemption (Group II). This case was fully briefed and argued before Judge Abramson on Aug. 27, 2012. The judge issued a ruling on Sept. 25 opting to seek to have the issues resolved by the NH Supreme Court on an interlocutory appeal basis (like the other two other cases). After this ruling, of course, the NH Supreme Court declined the interlocutory appeals in the AFT and NH3 cases, thus we filed a motion to reconsider with Judge Abramson noting that any further interlocutory request is likely doomed as well.
However, on Oct. 29 the Judge denied the motion to reconsider. Thereafter, we have circulated yet another interlocutory appeal statement with the state and NHRS and filed those pleadings today.
All the pleadings in these cases are available at http://www.molanmilner.com/cases_to_follow.