Pro Se plaintiff Charles Ouslander filed another brief on November 13 with the New Jersey Supreme Court in the Cost-of-Living-Adjustment (COLA) case which essentially called the state’s arguments idiotic. Though he never used that word he used several similar ones (emphasis added):
The State’s obstinate unwillingness to read the statute in accordance with well established rules of statutory construction, especially in light of the law and public policy supporting the protection of public employees’ rights, is a testament to its effort to divert attention from the State’s unrelenting refusal to properly fund the pension system. (page 1)
the State repeatedly elides any attempt on its part to properly construe this dispositive phrase. (page 2)
the State’s arguments that COLAs are not protected pension benefits is a conceit premised on a brazen disregard of the most fundamental principles of statutory construction. (page 2)
Tellingly, the State does not, and presumably cannot, set forth any argument – beyond a naked assertion – as to why COLAs are not subsumed within the meaning of the term “benefits program”. (page 3)
The State, however, stubbornly, and therefore tellingly, refuses to acknowledge the ordinary and well-understood meaning of the phrase “benefits program” as it applies to those retirement benefits which are subject to the non-forfeitable right statute. (page 4)
the State’s claim the non-foreitable right lacks specific terms that are contractually protected is simply wrong. (page 5)
Presumably, the dictionary used by the State also included definitions for the same words they now claim the Legislature failed to adequately explain, specifically the meaning of the words “benefits” and “program”. (page 6 footnote)
The State’s bizarre and unpersuasive claim that the pension adjustment statutes are not part of “the laws governing the retirement system” is erroneously based on the placement, numbering and statutory citation of the law, as opposed to its substantive legal effect over a specific subject. (page 10)
Moreover, the State’s ongoing failure to even acknowledge, let alone address, the extensive body of decisional authority requiring that pension statutes be liberally construed for the person intended to be benefited in this context is simply bewildering. (pages 10-11)
The State’s assertion that the Appellate Division misconstrued Senator Inverso’s statements, the legislative history of the non-forfeitable right and the circumstances in which it was created is both strained and disingenuous. (page 14)
the State’s claim that ERISA is irrelevant in interpreting the non-forfeitable right is wholly specious. (page 15)
The State’s claims that COLAs are not earned benefits and are therefore not within the protected coverage of the non- forfeitable right are also – individually and collectively – demonstrably incorrect. To arrive at this patently erroneous conclusion, the State – yet again – simply disregards applicable, binding law and legislative history in our State. (page 16)
Curiously, the State, once again, fails to provide this Court with binding, precedential legal authority that is both on point and dispositive. (page 17)
Despite the Appellate Division’s clear, comprehensive and correct legal analysis that the Debt Limitation and Appropriations clauses in our State Constitution are simply inapplicable to the disbursement of monies from State pension funds, the State unreasonably continues to rely on these provisions. (page 18)
The State disfigures beyond recognition this Court’s holding in Burgos v. State, 222 N.J. 175 (2015), by arguing that “in order to preserve base pensions for active employees, the State would be compelled to appropriate money to cover COLAs.” (page 19)
What the State is actually arguing is that because of its steadfast, repeated and ongoing failure to properly fund the pension system for the last twenty years, it has resorted to holding onto earned pension benefits, which should be disbursed, in the hopes of extending the solvency of the pension funds. (page 19)
The state still has to file its final brief and a decision will probably come down around February which may tell us more about the merits of the judges than the case.
It is obvious now that O.J. Simpson killed two people (that we know of) and it was the criminal justice system as applied to celebrities that was on trial in his case as the jurors were confused into ignoring the obvious.
Likewise this COLA case is clear-cut yet it will be decided by a group of people who owe their jobs to a governor and legislature* who prefer to see a particular outcome and, if the state comes up with anything that this court can latch onto without too much embarrassment, they might get it.
* Yes even the Democrats in the legislature who get all that union campaign cash would want to see COLAs eliminated since those union donations are secure while not having to put money into the pension fund would free up funds to repay their other backers.