Litigation 2011

1. Litigation 2011 “Let’s Get to Work!”

2. Florida Retirement System ChangesSB 2100

3. Pension “Reform” Challenge • Senate Bill 2100 made many changes to the Florida Retirement System (FRS) some of which only apply to new employees first hired after July 1, 2011: • Average compensation changed from 5 to 8 years • Vesting increased from 6 to 8 years • Retirement age increased from 62 to 65 • Years of service requirement increased from 30 to 33 • Special risk retirement age increased from 55 to 60 and required years of service from 25 to 30 years

4. Pension “Reform” Challenge • Two significant changes apply to all current FRS participants: • Mandatory 3% pay deduction for contribution to retirement • Reduction in earned cost-of-living adjustment (COLA) for service performed after July 1, 2011, but which affects calculation for prior service • These changes are challenged by the lawsuit in Leon Circuit Court

5. Pension “Reform” Challenge Section 121.011(3)(d), Florida Statutes, provides: “As of July 1, 1974, the rights of members of the retirement system established by this chapter are declared to be of a contractual nature, entered into between the member and the state, and such rights shall be legally enforceable as valid contract rights and shall not be abridged in any way.” (underlining added)

6. Pension “Reform” Challenge • Many employees (such as educators) have individual contracts which establish salary • Collectively bargained contracts establish salary • Statutes and personnel policies establish salary • These different ways of ensuring a day’s pay for a day’s work create a protected interest in salary, i.e., a “property right”

7. Pension “Reform” Challenge Article I, Section 10, Florida Constitution, states: “Prohibited laws. – No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.” (underlining added)

8. Pension “Reform” Challenge • The Legislature may only impair a contractual right if a “compelling state interest” exists: “[T]he legislature must demonstrate no other reasonable alternative means of preserving its contract with public workers, either in whole or in part. The mere fact that it is politically more expedient to eliminate all or part of the contracted funds is not in itself a compelling reason. Rather, the legislature must demonstrate that the funds are available from no other reasonable source.” (Florida Supreme Court)

9. Pension “Reform” Challenge • Deducting 3% of the earned salary from public workers is also a “taking” prohibited by Article X, Section 6 of the Constitution (“[n]o private property shall be taken except for a public purpose and with full compensation therefor…”) • Further, the unilateral changes violate Article I, Section 6 of the Constitution (guaranteeing that the right of employees to bargain collectively “shall not be denied or abridged.”)

10. Pension “Reform” Challenge • The status of the case is: • On June 30, 2011, the Judge denied the request to “sequester” funds being collected • The Judge determined that she has the authority to require the State to return contributions if she finds the law to be unconstitutional • The Court has scheduled final trial level disposition of the case for October 26, 2011, either through motions for summary judgment or a non-jury trial

11. Taxpayer Money to Support ReligionCS/HJR 1471

12. Church/State Separation • CS/HJR 1471, which has been given status as “Amendment 7” to appear on the 2012 general election ballot, if enacted, removes major protections against taxpayers being required to fund religion and religious institutions • Entitled “Religious Freedom” on the ballot, the amendment, if enacted, will erode the long-standing separation of church and state provisions in the Florida Constitution

13. Church/State Separation • The measure, if enacted, will: • Remove the language in Article I, Section 3 of the Florida Constitution which prohibits revenue of the State (i.e., taxpayers’ money) from being taken from the treasury “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution” • Add new language which will create the right for religious organizations to participate in “any program, funding, or other support” offered by the State, beyond that which is required by the U.S. Constitution, at taxpayer expense

14. Church/State Separation • The ballot summary and title are misleading: • The summary misleadingly states that the initiative will amend the Florida Constitution “consistent with the United States Constitution,” which is a false statement • The title is misleading in that it suggests that passage of the amendment will create “religious freedom” when, in fact, it will permit tax dollars to be taken and used for religious purposes with which the taxpayer may not agree

15. Church/State Separation • Section 101.161, Florida Statutes, requires that the “substance of such amendment” must be printed in “clear and unambiguous language on the ballot” • Court decisions require the summary to explain “the legal effect of the amendment” • The voter must be clearly apprised of what changes the passage of the amendment will create

16. Church/State Separation • The U.S. Constitution permits a governmental entity to refrain from funding religious activities • Amendment 7, if enacted, would require governmental entities to fund religious activities • The ballot summary, stating that Amendment 7 will make the Florida Constitution “consistent with the United States Constitution” is materially misleading

17. Church/State SeparationThe Suit Within the Suit • The Legislature in 2011 enacted changes to the laws governing ballot initiatives • One such change gives to the Attorney General the right to rewrite a ballot amendment found to be misleading by the Court and thereafter the rewritten amendment will be placed on the ballot • Such change grants legislative functions to a member of the executive branch in violation of the doctrine of separation of powers

18. Other Possible Litigation

19. Other Possible Litigation • Class size penalties, definition of “extracurricular classes” and charter school non-compliance with class size requirements • “Student Success Act” impairment of right of employees to collectively bargain over wages, hours and terms and conditions of employment • Charter school expansion depriving school boards of right to “operate, control and supervise” schools in the district

20. Other Possible Litigation • Voucher expansion, including growth of corporate tax-credit vouchers and making any child with the need for a Section 504 accommodation eligible for a McKay voucher • Adequacy of state funding of public schools in contravention of Article IX, Section 1 of the Constitution making providing a high quality system of free public schools the “paramount duty” of the State.

21. Other Possible Litigation The lawyers of Florida say: “Thank you Governor Scott and the Florida Legislature for providing us with the opportunity to get to work!”

22. Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, Florida 32301 850-878-5212 www.meyerbrookslaw.com