Monterey County Superior Court Judge Thomas Wills ruled on June 26th that the 2002 ordinance enhancing public-safety pensions was legally enacted, and therefore could not be voted on by the citizens of Pacific Grove.
To put the decision in perspective, Judge Wills encouraged the citizens to Appeal his decision. His decision was based on his opinion that it was “plain” to him that Govt. Code 7507 was not “mandatory.” That code section stated that the city council could not adopt a pension increase unless it first learned the “future annual costs” from a qualified actuary and made the estimated annual cost known to the public, at a noticed public meeting.
I used the word “plain” because that is the legal standard for a judge to prohibit a vote on an initiative. If Govt. code 7507 is not mandatory, that fact must be “plain.” It is not the test that based on the evidence the judge first concludes that a statute is not mandatory and then based on that finding rules that the proposed initiative is “plainly invalid.”
Judge Wills noted that his opinion that Govt code 7507 was not mandatory is a legal issue of first instance and therefore a test case via Appeal was called for.
In one sense, his opinion that whether Govt code 7507 was mandatory has not been litigated is true, and that is that never before in the history of that code has anyone had the ballderdash to assert that it was only directory as an issue in a case. But there are several cases that assumed it was mandatory and neither side raised the issue of whether it was or not. Govt. Code 14 says that is mandatory and CaLPERS says that it is mandatory.
But what does the Ca. Supreme court have to say about whether it is/was mandatory? In VOTERS FOR RESPONSIBLE RETIREMENT v. BD. OF SUPERVISORS OF TRINITY COUNTY et al, 8 Cal 4th 765 (1994) the court said: “In addition section 7507 provides that the local legislative body, before adopting increases in public retirement benefits for its employees, must obtain actuarial evaluations of future annual costs of the plan, and make that cost information public “at a public meeting at least two weeks prior to the adoption of any increases in public retirement plan benefits.”
“Must” sounds Mandatory? Right? Probably not to City Atty. Laredo, or the mayor.
In the case before judge Wills, there was NO evidence of a noticed public meeting wherein the notice indicated that a pension retirement plan increase and the “future annual costs” of that plan would be revealed in the meeting. And the law is clear that an Agenda Report can “Never” supply that notice even if there was a direct reference to it (e.g.”see Agenda Report). And there was not even a reference that an Agenda report existed in the instant case. So, if 7507 is mandatory, the 2002 adoption was illegal and the initiative is valid.
I am waiting to learn whether the PG-Three will Appeal before taking my gloves off. If they appeal and the judgement is stayed, the appeal could not be concluded, so the Initiative would be on the ballot. That contest would be exactly what this city needs—the pension reformers running for office and encouraging voters to elect them and to vote for the initiative. And the Unionist like Kampe, Huitt, Fischer, Cuneo and Cohen on the other side trying to explain why they have not done anything while in office but to protect the ill gotten gains of our troubled police union and our departed fire dept.
The above are the opinions of John M. Moore/ PGTA.
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About the Author: John M. Moore is a resident of Pacific Grove, Ca. He is a licensed member of the California State Bar (#34749) and a member of the “Public Law” section of the State Bar. He is retired and no longer practices law, but has Lexis/Nexis for research. John graduated from San Jose State College with majors in Political Science and Economics (summa cum laude). He then received a JD from The Stanford School of Law and practiced business and trial law for 40 years before retiring. In 1987, he was the founding partner of a Sacramento law firm that he formed in 1987 to take advantage of the increased bankruptcies brought about by the Tax Act of 1986. Although Moore did not file and manage bankruptcy cases, he represented clients in numerous litigation matters before the bankruptcy court, including several cases before judge Klein, the current judge of the Stockton bankruptcy case. Moore is an admirer of Judge Klein, for his ability and accuracy on the law. As managing partner at his law firm, Moore understood the goals of bankruptcy filings and its benefits and limitations.