Appendix — Pineman v. Fallon

Supreme Court brief1988

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Text

No. ae

In The ba

Supreme Court Of Che United States

OCTOBER TERM, 1988

KAREN PINEMAN, ALPHONSE MAROTTA,

DANIEL CLIFFORD, JUDITH NARUS, |

ROSE SCHEWE and ALFRED K. TYLL,

Petitioners,

V.

WILLIAM J. FALLON, Chairman of the

State Employees Retirement Commission,

HENRY E. PARKER, Treasurer of the

State of Connecticut, and

J. EDWARD CALDWELL, Comptroller of the

State of Connecticut,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PAUL W. ORTH

SHIPMAN & GOODWIN

799 Main Street

Hartford, CT 06103

(203) 549-4770

Printed by

Brescia’s Printing Services, Inc.

66 Connecticut Boulevard

East Hartford, CT 06108

528-4254

APPENDIX TABLE OF CONTENTS

STATUTES IN ISSUE: Page

ye ee A 4. SS. eS Al

Conn. Gen. Stat. §5-156(a)

(1971 Enactment and 1975

SD Pa ee eee ee ee ee Al4

Conn. Gen. Stat. §5-162(c)(1)

(1958 Revision and 1975

a Al9

Conn. Gen. Stat. §5-162(d)(1)

(1958 Revision and 1975

Ee aie acy ee We eae ee Oe A21

Conn. Gen. Stat. §5-162(d)(3)

(1958 Revision and 1975

I eae a a Gob wie eee « A23

Conn. Gen. Stat. §5-163(c)

(1958 Revision and 1975

Sa EO GED ae ar ee a A26

Conn. Gen. Stat. §5-166(a)

(1958 Revision, 1971 Amendment

ana i975 Amendment) ....ccccccce A28

PRIOR DECISIONS:

Pineman I-

Pineman v. Oechslin, 494 F.Supp.

Bee. Sw COMR. LOGO} cc ccc wcccwene A30

Pineman II-

Pineman v. Oechslin, 637 F.2d

Oe ee eS sD eee A175

Pineman III

Pineman v. Oechslin, 195 Conn.

405, 486 A.2d 603 (1965)... A198

APPENDIX TABLE OF CONTENTS

(Continued )

Pineman V-

Pineman v. Fallon, 662 F.Supp.

1311 (D.Conn. 1987)..----+++-+--

Pineman VI-

Pineman v. Fallon,

F.2d (24 Cir. 1968) ..««+-

Judgment - Pineman v. Fallon,

(2a Cir. March 10, 1988)....-.--

Substitute House Bill No. 5176

PUBLIC ACT No. 75-531

AN ACT CONCERNING ELIGIBILITY FOR STATE

RETIREMENT.

Section 1. Subsection (c) of

section 5-162 of the general statutes

is repealed and the following is

substituted in lieu thereof:

(c) Schedule 1--Twenty-five or

more years of state service.

(1) EXCEPT AS PROVIDED IN SECTION

5 OF THIS ACT, [Each] EACH member who

has completed twenty-five or more years

of state service shall be retired, on

his own application or on the

application of the executive head of

the agency employing him, on the first

day of the month named in the

application, and on or after the

member's fifty-fifth birthday [, if a

ae

man, or fiftieth birthday, if a woman. ]

(2) Each member who has completed

twenty-five or more years of state

service and has reached his seventieth

birthday and who is in an appointive

position shall continue in service and

shall be retired on the first day of

the month on or after his seventieth

birthday, upon notice from the

retirement commission to the member, to

the executive head of his agency and

the comptroller.

(3) Each member referred to in

subdivisions (1) and (2) of this

subsection shall receive a monthly

retirement income beginning on his

retirement date equal to one-twelfth of

(A) plus (B)}: (A) Twenty-five per cent

of his social security earnings, plus

fifty percent of his excess earnings;

(B) the number of years, if any, taken

to completed months, of his state

- A2 -

service in eucesa of twenty-five years

multiplied by one percent of his social

security earnings, plus the number of

such years multiplied by two per cent

of his excess earnings.

Sec. 2. Subsection (d) of section

5-162 of the general statutes is

repealed and the following is

substituted in lieu thereof:

(d) Schedule 2--Less than

twenty-five years of state service.

(1) EXCEPT AS PROVIDED IN SECTION

5 OF THIS ACT, [Each] EACH member who

has completed less than twenty-five

years of state service shall be retired

on his own application, the first day

of the month following his application,

if [he then meets any one of the

following conditions: (A) The member is

a woman who has completed five years of

state service and reached her

sixty-fifth birthday; (B) the member is

as

a woman who has completed ten years of

state service and reached her

fifty-fifth birthday; (C)] the member

[is a man who] has completed ten years

of state service and reached his

sixtieth birthday.

(2) Each such member in an

appointive position who has reached his

seventieth birthday shall continue in

service and shall be retired on the

first day of the month on or after his

seventieth birthday, upon notice from

the retirement commission to the

member, the executive head of his

agency and the comptroller.

(3) Each member referred to in

subdivisions (1) and (2) of this

subsection shall receive a monthly

retirement income beginning on his

retirement date equal to one-twelfth of

(A) plus (B): (A) The number of years

of his state service, taken to

» At =

completed months, multiplied by the

applicable percentage of his social

security earnings determined from the

table below for the appropriate age and

years of state service; (B) the number

of such years multiplied by the

applicable percentage of his excess

earnings determined from the table

below for such age and years of service.

Percentage

[Age of Member Years of _ of Social

on His Retire- State Ser- Security Excess

ment Date vice Earnings Earnings

Man Woman

70 and 65 and 5

over over and over* 1.25% 2.50%

65 to 70 60 to 65 10 1.00 2.00

64 59 10 94 1.88

63 58 10 .88 1.76

62 57 10 82 1.64

61 56 10 .76 1.52

60 55 10 .70 1.40

59 54 10 65 1.30

58 53 10 .60 1.20

57 52 10 56 1.12

56 51 10 53 1.06

55 50 10 50 1.00

“Not more than 20 years may be counted

for this age and percentage group. }

PERCENTAGE

AGE OF MEMBER yEars OF OF SOCIAL

ON HIS RETIRE- sTATE SECURITY EXCESS

MENT DATE SERVICE EARNINGS EARNINGS

70 AND OVER 4 AND OVER* 1.25% 2.50%

65 - 20 10 1.00

64 10 24 1.88

63 10 88 1.76

62 10 82 1.64

61 10 26 L52

60 10 20 1.40

39 10 ‘65 30

58 10 60 1.20

37 10 56 Ll

26 10 53 1.06

a2 10 50 1.00

*NOT MORE THAN 20 YEARS MAY BE COUNTED FOR

THIS AGE AND PERCENTAGE GROUP.

For each full year of service

beyond ten, the percentage of social

security earnings shall be increased by

one-fifteenth of the difference between

one and the percentage shown in the

above table opposite the age of the

retiring employee, and the percentage

of excess earnings shall be increased

by one-fifteenth of the difference

between two and the percentage shown in

the above table opposite the age of the

retiring employee.

» AS =

Sec. 3. Subsection (c) of section

5-163 of the general statutes is

repealed and the following is

substituted in lieu thereof:

(c) EXCEPT AS PROVIDED IN SECTION

5 OF THIS ACT, [A] A member whose state

service is terminated because of

economy lack of work or abolition of

his position, or who, being an army or

air national guard technician in the

military department, is dismissed by

reason of separation from the national

guard because of age, after he has

completed twenty-five years of state

service but before he has reached his

fifty-fifth birthday, [if aman, or her

fiftieth birthday, if a woman,] shall

be entitled to a retirement income.

The amount of each monthly payment

shall be determined from subsection (c)

of section 5-162, if the member elects

the first day of the month on or after

» BF a

_————

such birthday as his retirement date;

and shall be the actuarial equivalent

of such amount, as determined by the

retirement commission, if the member

elects the first day of the month on or

after his termination date as his

retirement date.

Sec. 4. Subsection (a) of Section

5-166 of the general statutes is

repealed and the following is

substituted in lieu thereof:

(a) EXCEPT AS PROVIDED IN SECTION

5 OF THIS ACT, [A] A member who leaves

state service before he is eligible for

retirement but after completing at

least ten years of state service, of

which at least five years shall have

immediately preceded the date of his

leaving state service, shall continue

to be a member, and shall be eligible

for a retirement income as provided in

section 5-162, but on a reduced

“a ee

actuarial basis, as determined by the

retirement commission [provided, if

such member is a woman she shall be

eligible upon reaching her fiftieth

birthday and if a man, he shall be

eligible] upon reaching his fifty-fifth

birthday. Such vested retirement

income shall not be subject to

divestiture by subsequent employment

unless the member withdraws his

retirement contribution.

Sec. 5 (NEW) (a) Any member who has

completed twenty-five years of state

service and has reached the age of

fifty prior to June 30, 1980, may elect

to be retired on the first day of the

month following such application and

receive retirement benefits in

accordance with the provisions of

subdivision (3) of subsection (c) of

section 5-162 of the general statutes,

- Ad--

provided such member so elects prior to

June 30, 1980.

(b) Any member who has completed

at least ten but less than twenty-five

years of state service and reached the

age of fifty-five prior to June 30,

1980, may elect to be retired on the

first day of the month following his

application and receive retirement

benefits in accordance with subsection

(d) of this section, provided such

member so elects prior to June 30, 1980.

(c) Any member who has completed

at least five but less than ten years

of state service and has reached the

age of sixty-five prior to June 30,

1980, may elect to be retired on the

first day of the month following such

application and receive retirement

benefits in accordance with the

provisions of subsection (d) of this

- AlO -

section, provided such member so elects

prior to June 30, 1980.

(d) Each member referred to in

subsections (b) and (c) of this section

shall receive a monthly retirement

income beginning on his retirement date

equal to one twelfth of (A) plus (B):

(A) The number of years of state

service taken to completed months,

multiplied by the applicable percentage

of his social security earnings

determined from the table below for the

appropriate age and years of state

service; (B) the number of years

multiplied by the applicable percentage

of his excess earnings determined from

the table below for such age and years

of service.

- All -

Percentage

Age of Member __ Years of Of Social

on his Retire- State Security Excess

ment Date Service Earnings Earnings

65 and over 5 and over* 1.25% 2.50%

60 to 65 10 1.00 2.00

59 10 .94 1.88

58 10 .88 1.76

57 10 .82 1.64

56 10 .76 1.52

55 10 .70 1.40

54 10 .65 1.30

53 10 .60 1.20

52 10 .56 1.12

51 10 53 1.06

50 10 .50 1.00

*Not more than 20 years may be counted

for this age and percentage group.

For each full year of service beyond

ten, the percentage of social security

earnings shall be increased by

one-fifteenth of the difference between

one and the percentage shown in the

above table opposite the age of the

retiring employee, and the percentage

of excess earnings shall be increased

by one-fifteenth of the difference

between two and the percentage shown in

the above table opposite the age of the

retiring employee.

- Al2 -

Sec. 6. This act shall take

effect from its passage.

Approved June 30, 1975

8471H

- Al3 -

Conn.Gen.Stat. §5-156a

1971 Public Act 666§4

Funding of retirement system on

actuarial reserve basis

(a) The state employees’

retirement system shall be funded on an

actuarial reserve basis. The

retirement commission shall, on or

before December first, annually certify

to the general assembly the amount

necessary on the basis of an actuarial

determination to gradually establish

and subsequently maintain the

retirement fund on such determined

actuarial reserve basis, and make such

other recommendations with regard to

such fund and its administration as the

commission deems appropriate. The

retirement commission shall, at least

once every three years, prepare a

valuation of the assets and liabilities

- Al4 -

0 tte

of the system. On the basis of each

such valuation, it shall redetermine

the normal rate of contribution and,

until it is amortized, the unfunded

past service liability. The general

assembly shall review the commission's

recommendations and certification and

shall appropriate to the retirement

fund the amount certified by the

retirement commission as necessary

provided said certification is in

compliance with this section.

(b) The retirement commission

shall determine on an actuarial basis

(1) a normal rate of contribution which

the state shall be required to make

into the retirement fund in order to

meet the actuarial cost of current

service and (2) the unfunded past

service liability. For the first

fifteen years, the funding program for

- Al5S -

the actuarial reserve basis shall

consist of the following percentages of

the sum of normal cost and the amount

required for a forty-year amortization

of unfunded liabilities:

Percentage to be

paid of normal cost

plus full 40-year

amortization

Fiscal year from the beginning

Beginning of such fiscal year

7-1-71 30

7-1-72 35

7-1-73 40

7-1-74 45

7-1-75 45

7-1-76 50

7-1-77 55

7-1-78 60

7-1-79 65

7-1-80 70

7-1-81 75

7-1-82 80

7-1-83 85

7-1-84 90

7-1-85 95

- Al6 -

Bain.

provided said state payments shall not

be less than seventy-five per cent of

total retirement income payments for

each fiscal year commencing July l,

1973; and for each of the fiscal years

ending June 30, 1972, and June 30,

1973, respectively, shall be seventy

per cent of the total retirement income

payments.

(c) Transfer of appropriated

amounts from the general fund to the

retirement fund shall be made in equal

monthly payments during the fiscal year.

(d) No act liberalizing the

benefits of the plan shall be enacted

by the general assembly until the

assembly has requested and received

from the retirement commission a

certification of the cost of such

change under the actuarial funding

basis adopted by this act using full

normal cost plus forty year

amortization.

- Al7 -

1975 Amendment

1975, P.A. 75-581, §4, amending

subsec. (b), substituted “sixteen” for

“fifteen years in the second sentence,

increased the percentage for each

fiscal year beginning 7-1-75 by 5%, and

provided for fiscal year beginning

7-1-86.

- Alg -

Conn.Gen.Stat. §5-162(c)(1)

1958 Revision

Retirement date and retirement income

(c) Schedule 1-Twenty-five or more

years of state service.

(1) Each member who has completed

twenty-five or more years of state

service shall be retired, on his own

application or on the application of

the executive head of the agency

employing him, on the first day of the

month named in the application, and on

Or after the member's fifty-fifth

birthday, if€ aman, or fiftieth

birthday, if a woman.

- Ald -

1975 Amendment

1975, P.A. 75-531, §1, amended

subsec. (c)(1l) by inserting “Except as

provided in section 5 of this act “, at

the beginning and by deleting”, if a

man, or fiftieth birthday, if a woman”

from the end.

- A20 -

Conn.Gen.Stat. §5-162(d)(1)

1958 Revision

Retirement date and retirement income

(d) Schedule 2-Less than

twenty-five years of state service.

(1) Each member who has completed

less than twenty-five years of state

service shall be retired on his own

application, on the first day of the

month following his application, if he

then meets any one of the following

conditions: (A) The member is a woman

who has completed five years of state

service and reached her sixty-fifth

birthday; (B) the member is a woman who

has completed ten years of state

service and reached her fifty-fifth

birthday; (C) the member is a man who

has completed ten years of state

service and reached his sixtieth

birthday.

- A2l -

1975 Amendment

1975, P.A. 75-531, §2, amended

subsec. (d)(1l) by inserting “Except as

provided in section 5 of this act,", by

deleting “he then meets any one of the

following conditions: (A) The member

is a woman who has completed five years

of state service and reached her

sixty-fifth birthday; (B) the member is

a woman who has completed ten years of

state service and reached her

fifty-fifth birthday; (c)" following

“following his application, if", and by

deleting “is a man who" following “the

member";

- A22 -

Conn.Gen.Stat. §5-162(d) (3)

1958 Revision

Retirement date and retirement income

(d) Schedule 2-Less than 25 years

of state service.

(3) Each member referred to in

subdivisions (l) and (2) of this

subsection shall receive a monthly

retirement income beginning on his

retirement date equal to one-twelfth of

(A) plus (B): (A) The number of years

of his state service, taken to

completed months, multiplied by the

applicable percentage of his social

security earnings determined from the

table below for the appropriate age and

years of state service; (B) the number

of such years multiplied by the

applicable percentage of his excess

earnings determined from the table

below for such age and years of service.

- A23 -

Percentage

of Social

Age of Member on Years of Security Excess

His Retirement Date State Service Earnings Earnings

ney Man . Woman

70 andover 65andover 5 and over* 1.25% 2.50%

65 to 70 60 to 65 10 1.00 2.00

64 59 10 94 1.88

63 58 : 10 .88 1.76

62 57 10 82 1.64

61 56 10 -76 1.52

60 55 10 .70 1.40

59 54 10 65 1.30

58 53 10 .60 1.20

57 52 10 56 1.12

56 51 10 53 1.06

55 50 10 .50 1.00

* Not more than 20 years may be counted for

this age and percentage group

For each full year of service beyond

ten, the percentage of social security

earnings shall be increased by

one-fifteenth of the difference between

one and the percentage shown in the

above table opposite the age of the

retiring employee, and the percentage

of excess earnings shall be increased

by one-fifteenth of the difference

between two and the percentage shown in

the above table opposite the age of the

retiring employee.

- A24 -

ical

1975 Amendment

1975, P.A. 75-531, §2, amended

subsec. (d)(3), by substituting the

table for former table which had

included separate columns for men and

women for age at retirement.

Age of Member on Years of State Percentage of Social Excess

His Retirement Date Service ** Security Earnings Earnings

70 and over 5 and over * 1.25% 2.50%

65 to 70 10 1.00 2.00

64 10 94 1.88

63 10 88 1.76

62 10 82 1.64

61 10 .76 1.52

60 10 .70 1.40

59 10 .65 1.30

58 10 .60 1.20

57 10 56 1.12

56 10 53 1.06

55 10 .50 1.00

“Not more than 20 years may be counted for this age

and percentage group.

** Between the ages of fifty-five and sixty, the minimum

service requirement is ten years of actual state service.

Conn.Gen.Stat. §5-163(c)

1958 Revision

Early retirement

(c) A member whose state service

is terminated because of economy, lack

of work or abolition of his position,

or who, being an army or air national

guard technician in the military

department, is dismissed by reason of

separation from the national guard

because of age, after he has completed

twenty-five years of state service but

before he has reached his fifty-fifth

birthday, if aman, or her fiftieth

birthday, if a woman, shall be entitled

to a retirement income. The amount of

each monthly payment shall be

determined from subsection (c) of

section 5-162, if the member elects the

first day of the month on or after such

- A26 -

ill

birthday as his retirement date; and

shall be the actuarial equivalent of

such amount, as determined by the

retirement commission, if the member

elects the first day of the month on or

after his termination date as his

retirement date.

1975 Amendment

1975, P.A. 75-531, §3, amended the

first sentence of subsec. (c) by

inserting “Except as provided in

section 5 of this act," at the

beginning and by deleting "if aman, or

her fiftieth birthday, if a woman,”

following “his fifty-fifth birthday,".

- A27 -

Conn.Gen.Stat. §5-166(a)

1958 Revision

Leaving state service before becoming

eligible for retirement

(a) A member who leaves state

service before he is eligible for

retirement but after completing at

least ten years of state service, of

which at least five years shall have

immediately preceded the date of his

leaving state service, shall continue

to be a member, and shall be eligible

for a retirement income as provided in

section 5-162, but on a reduced

actuarial basis, as determined by the

retirement commission, provided, if

such member is a woman she shall be

eligible upon reaching her fiftieth

birthday and if aman, he shall be

eligible upon reaching his fifty-fifth

birthday.

- A28 -

—T

1971 Amendment

1973, P.A. 73-171 added, to

subsec.(a), the second sentence.

1975 Amendment

1975, P.A. 75-531, §4, amended the

first sentence of subsec. (a) by

inserting "Except as provided in

section 5 of this act," at the

beginning, and by deleting “, provided,

if such member is a woman she shall be

eligible upon reaching her fiftieth

birthday and if aman, he shall be

eligible” following “as determined by

the retirement commission".

9145H

Karen PINEMAN, Alphonse Marotta,

Daniel Clifford, Judith Narus, Rose

Schewe and Alfred K. Tyll

William G. OECHSLIN, Chairman of

the State Employees Retirement

Commission, Henry E. Parker, Treasurer

of the State of Connecticut, and J.

Edward Caldwell, Comptroller of the

State of Connecticut.

Civ. No. H 77-164.

United States District Court,

District of Connecticut.

April 16, 1980.

State employees brought action

challenging legislation which

established for all employees

retirement ages which were identical to

- A30 -

the high retirement ages previously

applicable only to male employees. The

District Court, José A. Cabranes, J.,

held that statutory amendments which

established for all state employees

retirement ages that were identical to

the high retirement ages previously

applicable only to male employees of

the state was in violation of the

contract clause of the United States

Constitution, as that legislation was

applied to state employees who had not

reached normal retirement age prior to

June 30, 1980, and who were such

employees on June 30, 1975, since the

legislation impaired obligations of

contract entered into between state and

its employees requiring state to permit

those male and female employees to

retire on terms of State Employees

Retirement Act, and since the

impairment could not be justified as

- A3l -

either necessary to serve important

public purpose or as being reasonable

in light of the surrounding

circumstances

Plaintiffs‘ motion for summary

judgment granted.

Paul W. Orth, Hoppin, Carey &

Powell, Hartford, Conn., for plaintiffs.

J. Sarah Posner, Asst. Attorney

General, State of Connecticut, Carl R.

Ajello, Attorney General, Hartford,

Conn., for defendants.

- A32 -

MEMORANDUM OF DECISION ON PLAINTIFFS’

MOTION FOR SUMMARY JUDGMENT

JOSE A. CABRANES, District Judge.

Contents

a eee et ee ee 527

Ba ee EE i'd s 6-0 o 0-6 6 6 ee 6 ke ee 529

II. THE FACTUAL BACKGROUND.......... 530

A. The Fitzpatrick

AN ae ee ee 530

B. The Plaintiffs’

Reliance on Pre-1975

GC. FRO 2975 ASlevocccccessess 533

D. The Legislative History

OF CRO 2975 ASE. cccccseces 535

III. THE PLAINTIFFS* CLAIMS.......... 536

IV. THE CONTRACT CALUSE OF THE

UNITED STATES CONSTITUTION...... 537

- A33 -

Ent rOGuUCtiON..ccccscccsecsece

Connecticut’s Contractual

Obligations to the

Plainti€Es. .ccccccccsacscccses

1. Contractual Obliga-

tions in Pensin Plans

Under Connecticut

2. Mere “Gratuities” or

Contractual Rights?....

3. The Content of the

Plaintiffs‘ Contrac-

tual and Connecti-

cut’s Obligations......

Connecticut's Impairment

of Its Contractual

ODLIGSCLONS.ccccccscccsssece

The Unconstitutionality

of Connecticut's Impair-

ment of Its Contractual

- A34 -

541

.

;

V.

GCOLRGSCEORS sc ccs cccssdcacers TrTreuy 547

l. The “Reserved Powers”

DER eis 6 bc ecek cekbsseébece 547

2. Judicial Scrutiny Under

the United States Trust Company

, ear ear aan er 548

et ere a ee 549

(b) Reasonableness......... 552

Cs a eb web aoe 6 080 bree week 553

- A35 -

Introduction

This action is a sequel to this

court's decision in Fitzpatrick v.

Bitzer’. In that case, decided in

1974, Chief Judge Clarie held invalid

the provisions of the Connecticut State

Employees Retirement Act,

Conn.Gen.Stat. Section 5-152 et seq.,

which required male employees of the

State to work five years longer to earn

pension benefits than similarly

Situated female employees. Judge

Clarie ruled that these provisions

discriminated against men on account of

their sex, in violation of Title VII of

the Civil Rights Act of 1964, as

amended ("Title VII").* The decision

in Fitzpatrick was not appealed by the

state,* and Connecticut began to

administer its retirement statute in a

- A36 -

~ acieiiioéiis i

manner consistent with the court's

ruling, permitting both men and women

to retire with full pension benefits at

the lower ages formerly applicable only

to women. *

At the next legislative session,

the General Assembly passed Public Act

75-531 ("the 1975 Act"), which amended

the portions of the State Employees

Retirement Act which this court found

to be discriminatory in Fitzpatrick.

The 1975 Act established for all

employees retirement ages which were

identical to the higher retirement ages

applicable only to male employees prior

to Fitzpatrick.

In this class action, certain male

and female employees of the State of

Connecticut challenge the constitution-

- A37 -

ality of the 1975 Act. The state

concedes that the effect of the 1975

Act was to require the plaintiffs, who

had become state employees and remained

in the state's service in reliance upon

the terms of pre-1975 law (as modified

by Judge Clarie‘s order), to work up to

five years longer than that law had

required in order to qualify for

retirement with full pension benefits.

The plaintiffs claim that the 1975 Act

therefore impaired the state's

pre-existing contractual obligations to

them, in violation of the contract

clause of the United States

Constitution. °®

The defendants, who are the

Connecticut officials ultimately

responsible for administering the State

Employees Retirement Act, deny that

- A38 -

pre-1975 law gave rise to any

contractual obligations. They assert

that “a pension is not a matter of

contract,” but “a gratuity ‘springing

from the appreciation and graciousness

of the sovereign.‘”°®

Accordingly,

they argue, the plaintiffs have no

rights which fall within scope of the

contract clause, even though (as they

admit) the state required the

plaintiffs to become members of the

State Employees Retirement System and

to contribute substantially to the fund

out of which benefits are paid, and the

plaintiffs joined and remained in the

state’s employ in reliance upon the

terms of pre-1975 law.

With due respect, the court

declines to follow the defendants'

reasoning. Rather, on the basis of the

- A39 -

uncontested facts before the court on

the plaintiffs' motion for summary

judgment, the court finds that the

state entered into a contractual

relationship with the plaintiffs,

pursuant to which the state bound

itself to permit the members of the

plaintiff class to retire from state

- service on the terms provided by the

law which was in effect immediately

prior to the adoption of the 1975 Act.

The court further finds that the 1975

Act severely impaired the state's

contractual obligations to this class

of its employees, and that this

impairment is unconstitutional under

the criteria set forth by the Supreme

Court, for the state has not argued,

much less established, that the

abrogation of its contractual

Obligations was either necessary for

« KAO

the achievement of the state's purposes

Or reasonable in light of the

circumstances.

Because the 1975 Act, as applied to

the plaintiffs, violates the contract

rrr of the United States

Constitution, the plaintiffs' motion

for summary judgment is granted. An

injunction shall be issued against the

enforcement of the 1975 Act with

respect to those state employees who

were in state service on June 30, 1975

(the effective date of the 1975 Act),

are still in the state's service, and

will not be eligible to retire with

full pension benefits prior to June 30,

1980.’

Among the plaintiffs to whom the

court grants relief from the chailenged

- A4l -

statutory provisions are female state

employees who entered state service

prior to the enactment of the 1975

Act. The state has admitted that all

of these class members relied on the

promise of pension benefits set forth

in the pre-1975 version of the State

Employees Retirement Act, both before

and after it was modified by the

decision in Fitzpatrick. The court

also grants similar relief to male

employees who entered state service

prior to the adoption of the 1975 Act.

It may be suggested that this decision

grants a “windfall” to those male class

members who entered state service

before this court's decision in

Fitzpatrick by permitting them to

retire on terms more favorable than the

ones upon which they relied under prior

law. However, the court is bound by

- A42 -

the state's admission that these class

members either expected to become

eligible for pension benefits on terms

as favorable as those extended to

temale employees under pre-Fitzpatrick

law, Or remained in state service after

the Fitzpatrick decision in reliance

upon the promise of benefits identical

to those of female employees which was

held out to them by the state following

that decision. Moreover, even apart

from the question of the expectations

of this group of class members, all

males who were in the state's employ at

the time of the Fitzpatrick decision

became entitled, under the terms of

Judge Clarie'’s order, to retire on the

terms applicable to similariy situated

female employees under the former law.

The court cannot deny any males in the

plaintiff class the right to retire on

- A43 -

the terms to which similarly situated

female class members are entitled

without in effect undoing Judge

Clarie's decision in Fitzpatrick.

Nothing in this ruling affects the

application of the 1975 Act, on a

prospective basis, to employees who

were not in the state's service on June

30, 1975, and who therefore had no

contractual rights to retire on the

more advantageous terms afforded by

prior law. The court holds only that

the retroactive application of the more

stringent requirements for pension

eligibility contained in the 1975 Act

to the discrete class of state

employees who brought this action is

unconstitutional.

The rules on retirement ages

enforced by this decision are those

- A44 -

embodied in contractual arrangements

between the state and its employees

prior to June 30, 1975. In holding the

1975 Act unconstitutional to the extent

that it changed those rules

retroactively as applied to the

plaintiffs, the court makes no judgment

concerning the wisdom of the pension

policies which the state enforced prior

to the enactment of the 1975 Act, or,

indeed, concerning the policies

embodied in the 1975 Act. Any harm to

the state treasury which may be caused

by the court's enforcement of the

state's contractual obligations-and the

state has neither shown nor suggested

the existence of such harm-is the

direct result of obligations assumed by

the state itself and of prior judicial

determinations, binding on the state,

which required that Connecticut's male

- A45 -

employees be accorded the same rights

as female employees under the state's

retirement system.

I. THE PARTIES

The plaintiff class, as certified

in this court's order of February 20,

1979, consists of “all existing

employees of the State of Connecticut

who will not reach normal retirement

age prior to June 30, 1980 and who were

such employees on June 30, 1975."°

It includes both male and female

employees. The phrase “normal

retirement age” refers to the age at

which employees are permitted to retire

with pension benefits, under the State

Employees Retirement Act, without

regard to special provisions for early

retirement.’

- A46 -

The defendants are William G.

Oechslin, chairman of the State

Employees Retirement Commission, Henry

G. Parker, Treasurer of the State of

Connecticut,'° and J. Edward

Caldwell, Comptroller of the State of

Connecticut and Secretary of the State

Employees Retirement Commission' '

The State Employees Retirement

Commission is responsible for

administering the State Employees

Retirement System and all other

retirement systems of the State of

Connecticut except the Teachers’

Retirement Fund. Conn.Gen.Stat.

§5-155(d). Nearly all of Connecticut's

employees are required by law to belong

to the State Employees Retirement

12

System.

- A4d7 -

The members of the State Employees

Retirement System must choose one of

two benefit plans. The first of these

plans is independent of the federal

Social Security program; the other is

coordinated with it. See

Conn.Gen.Stat. §§ 5-157, 5-158a-g.

Under either plan, the employees are

required to make contributions to the

State Employees Retirement Fund, out of

which the members’ retirement benefits

are paid. Indeed, employees have been

required to contribute to the

retirement fund since 1939, when the

retirement system was established. '’

An employee not covered by Social

Security must contribute 5% of his or

her salary to the fund, Conn.Gen.Stat.

§5-161(b), while an employee who has

Social Security coverage must

- A48

contribute to the fund an amount equal

to 2% of that part of his or her salary

on which the state makes Social

Security contributions plus 5% of the

remainder of his or her salary,

Conn.Gen.Stat. §5-161l(a). Actuarial

studies by the state demonstrate that,

depending upon the plan selected, the

age of retirement and the sex of the

employee, between 12% and 25% of an

employee's benefits is attributable to

his or her contributions, including the

interest accrued on those

contributions.'* The balance of the

benefits paid out of the State

Employees Retirement Fund is

attributable to appropriations by the

State. See Conn.Gen.Stat. §5-156a.

- A49 -

II. THE FACTUAL BACKGROUND

The facts relevant to the pending

motion are rather complex. However,

they are not in dispute.'’ Much of

the factual background is a matter of

public record, particularly the record

of the Fitzpatrick litigation. The

other relevant facts were admitted by

the defendants or stipulated by the

parties.

A. The Fitzpatrick Litigation

A brief recapitulation of the

history of the Fitzpatrick litigation

is the logical starting point for the

narrative of the facts relevant here.

The Fitzpatrick plaintiffs were members

of the class of male state employees

and former employees who belonged to

- A5O -

the State Employees Retirement System.

Fitzpatrick v. Bitzer, supra, 390

F.Supp. at 279. They challenged the

following statutory provisions then in

effect:

(1) Former Conn.Gen.Stat.

§5-162(c)(1), which allowed an employee

with 25 years of state service to

retire with pension benefits “or or

after the member's fifty-fifth

birthday, if aman, or fiftieth

birthday, if a woman";

(2) Former Conn.Gen.Stat.

§5-162(d)(1), which allowed any female

employee with at least 10, but less

than 25, years of state service to

retire with pension benefits at age 60,

but only permitted a male employee who

had served for that period of time to

- ASl -

retire with pension benefits at age

65;'°

(3) Former Conn.Gen.Stat.

§5-162(d)(3), which provided that the

calculation of retirement benefits be

made according to a table based on age

and sex, which ensured that a female

retiree would receive retirement

benefits equal to those received by a

male retiree five agai her senior;

(4) Former Conn.Gen.Stat.

§5-163(c), which permitted an employee

whose state service was terminated

under one of certain enumerated

conditions to retire with pension

benefits after the completion of 25

years of state service “before he has

reached his fifty-fifth birthday, if a

man, or her fiftieth birthday, if a

woman. .. ."*; and

- AS2 -

(5) Former Conn.Gen.Stat.

§5-166(a), which provided that, in

certain circumstances, an employee who

left state employment before reaching

the normal age of eligibility would be

eligible for retirement income, on a

reduced actuarial basis, at age 55 if

male, or age 50 if female.

See Fitzpatrick v. Bitzer, supra, 390

F.Supp. at 281.

In Fitzpatrick, Judge Clarie held

that these statutory provisions

violated Title VII of the Civil Rights

Act of 1964, as amended in 1972.'’

Fitzpatrick v. Bitzer, supra, 390

F.Supp. at 288. The court granted the

plaintiffs' request for injunctive

relief, prohibiting the defendants from

administering the State Employees

- AS3 -

Retirement Act in a discriminatory

manner in the future. Id. at 290.

The court's order stated:

"The defendants are accordingly

ordered to administer the State

Employees' Retirement Act without

unreasonable sex classifications

unfavorable to men as they relate

to retirement age and benefit

computations; so that men will be

eligible to retire at age 50 and

receive the same treatment as

Similarly situated women. Nothing

herein shall be construed to

interfere with the State

Legislature performing its

constitutional function of freely

determining public policy, as it

pertains to deciding upon a uniform

retirement age for all men and

women employees of the State of

Connecticut in the future, provided

the same is carried out without

discrimination as to age or

benefits on the basis of sex."

390 F.Supp. at 290 (emphasis added).

As a result of this order, from

which, as noted, the state did not

® the State of Connecticut

appeal,’

enforced the existing provisions of the

State Employees Retirement Act so that

men were treated precisely as women

- AS54 -

previously had been treated. Men with

25 years of continuous service were

thus permitted to retire at age 50

after Judge Clarie's order; other men

in state service were likewise

permitted to retire upon the terms

applicable to similarly situated

females.'?

B. The Plaintiffs' Reliance on

Pre-1975 Law

Through admissions and exhibits

obtained from the defendants, the

plaintiffs have established the

following facts relevant to the

question of the plaintiffs* reliance on

the law as it stood prior to the 1975

Act.**

At least since 1971, employees and

prospective employees of the State of

- ASS -

Connecticut have been made aware of the

retirement benefits available to them

under state law, at or before the time

they were hired. Moreover, prospective

employees have frequently inquired,

before entering the state’s employ,

about Connecticut's retirement benefit

laws, the State Employees Retirement

System and the benefits to which they

would be entitled if they became state

employees. The booklet which the state

distributes to new employees to

describe the State Employees Retirement

System declares: “You may retire--and

receive immediate retirement

benefits--at any time after you reach

the minimum permissible retirement

age.” Nowhere in that booklet does the

state expressly reserve the right to

change the minimum permissible

retirement ages, and the defendants

have not argued that the state ever

conveyed to the plaintiffs any

intention to reserve such rights.

State employees rely upon the

information which the state conveys to

them about its retirement laws, systems

and benefits, without regard to

subsequent changes adverse to them.

Indeed, some of the plaintiffs accepted

state employment, leaving otherwise

more lucrative positions, because of

Superior retirement benefits available

to them as state employees.

After joining state service,

Connecticut's employees frequently

inquire about retirement benefits,

including the options available to them

under state law and the ages at which

State law entitles them to retire with

benefits. The information which state

employees learn from such inquiries is

- AS7 -

a material and substantial factor in

their personal retirement plans.

Accordingly, the terms of the State

Employees Retirement Act are

substantial inducements for prospectiv:

employees to enter state service and

for those already in the state's emplo;

to remain in state service.

| The law upon which female members

| of the plaintiff class relied was the

State Employees Retirement Act, as it

read prior to its amendment in 1975.

The provisions of that law which

governed the retirement ages and

benefits of women were in no way

affected by the decision of the court

in Fitzpatrick.

Prior to that decision, which was

filed on September 16, 1974, the law

upon which most male employees relied

- AS58 -

contained the discriminatory

provisions--requiring men to work

longer than women to become eligible

for equivalent benefits--which were

held unlawful in Fitzpatrick. It is

admitted, however, that even before the

Fitzpatrick decision was announced, “an

indeterminate number of male state

employees believed that they would

obtain, through legislative or judicial

action, equal treatment with women

under the state's retirement laws,

l.e., that the retirement ages and

benefits applicable to women would be

made available to them through a change

in the laws.” In any event, the

‘itzpatrick decision changed the law to

enable men to retire on the terms

formerly applicable only to women, and

between September 1974 and June 1975

both prospective employees and men

already in state service learned,

- ASI -

either from pension benefit information

disseminated by the state or from other

sources, that the retirement ages and

benefits applicable to men had, by

virtue of the court's order, become

identical to those applicable to

women. The law upon which male members

of the plaintiff class were relying

just before the adoption of the 1975

Act was therefore the rule articulated

by Judge Clarie in Fitzpatrick: men

already in state service had the right

to retire at the same ages and with the

same levels of benefits as female state

employees. See Fitzpatrick v. Bitzer,

supra, 390 F.Supp. at 290.

C. The 1975 Act

The 1975 Act amended the State

Employees Retirement Act in a number of

ways. As the plaintiffs contend, and

- A60 -

the defendants concede,’' the thrust

of the amendments was to require

certain employees, both male and

female, to work as many as five years

longer than they were required to work

by prior law (i.e., the State Employees

Retirement Act, as modified by this

court's decision in Fitzpatrick) in

order to obtain the same level of

pension benefits. The 1975 Act did not

have this effect on all employees, for

it contained a “grandfather clause"’?

which exempted from the more stringent

age requirements for eligibility those

employees who would reach, before June

30, 1980, the lower age threshold

imposed by prior law; as a result of

this provision, the 1975 Act affected

only the plaintiffs and those who

entered state service after June 30,

1975.

- A6l -

The specific statutory provisions

which the plaintiffs challenge are the

following:

(1) Amended Conn.Gen.Stat.

§5-162(c) and 5-162(d), which require

an employee to reach the age of 55, if

he or she has completed 25 years of

state service, or the age of 60, if he

or she has completed at least 10 but

less than 25 years of state service,

before retiring with benefits.

Immediately prior to the enactment of

these amended provisions, such

employees could retire with benefits at

ages 50 and 55, respectively. These

subsections also establish benefit

schedules which reduce the levels of

retirement benefits that some members

of the plaintiff class can expect.

- A62Z -

(2) Amended Conn.Gen.Stat.

§5-163(c), which provides that an

employee whose state service is

terminated under certain conditions’?

is entitled to retirement benefits if

he or she has completed 25 years of

state service, but has not yet reached

his or her 55th birthday. The

applicable age for such an employee had

been 50 under the law which had been

enforced by the state immediately prior

to the adoption of the 1975 Act.

(3) Amended Conn.Gen.Stat.

§5-166(a), which provides that an

employee who leaves state service under

certain conditions before becoming

eligible for retirement with pension

benefits under other provisions of the

statute’* shall nonetheless be

eligible for a pension on a reduced

actuarial basis upon attaining the age

- A63 -

of 55. Under the law as applied

immediately prior to the enactment of

the 1975 Act, such an employee was

eligible for these benefits at age 50.

(4) Conn.Gen.Stat. §5-163a, which

permits any employee reaching either

(a) the age of 50 and his or her 25th

year of state service, or (b) the age

of 55 and nis or her 10th year of state

service, prior to June 30, 1980 to

retire with a pension at full benefit

levels before that date. This

provision protected these classes of

state employees from the more stringent

age qualifications embodied in other

provisions of the 1975 Act, but left

the members of the plaintiff class

exposed to the more restrictive

standards of the new law.

- A64 -

The effects of these provisions of

the 1975 Act on the named individuals

who represent the plaintiff class

illustrate the types of injuries which

the 1975 Act inflicts upon the

plaintiffs' expectations.*’ For

example, plaintiff Karen Pineman, who

is now 44 years old, has been in

continuous state service since January

16, 1956. Under former Conn.Gen.Stat.

§5-162(c)(1), which, as applied to

female employees, was unaffected by

Judge Clarie's 1974 order, she could

have expected to retire with pension

benefits at age 50--i.e., in 1986. The

1975 Act requires her to work an

additional five years--until 1991l--to

receive benefits at the same levels.

Plaintiff Alphonse S. Marotta is in

an analagous position. He is 45 years

old and has been in continuous state

- A65 -

service since June 20, 1955. Former

Conn.Gen.Stat. §5-162(c)(1) would have

required him, solely as a consequence

of his sex, to work until his 55th

birthday in order to obtain the

benefits due him as a 25 year veteran

of continuous state service. However,

the order of this court in Fitzpatrick,

which required the state to administer

its retirement statute “so that men

will be eligible to retire at age 50,"

changed the expectations of men in Mr.

Marotta's position. After the court's

order in Fitzpatrick, but before June

30, 1975 (the effective date of the

1975 Act), such male employees were

permitted to retire with pension

benefits at age 50. Indeed, the 1975

Act continued to allow retirement with

full benefits at age 50 for employees

who had served the state for 25 years

and reached age 50 before June 30,

1980. Conn.Gen.Stat. §5-163a.

However, because Mr. Marotta will not

reach age 50 until after June 30, 1980,

under the 1975 Act he will have to wait

until his 55th birthday, in 1990

(rather than his 50th birthday, in

1985), to retire with pension benefits.

Plaintiff Alfred K. Tyll is ina

Similar situation. He is 48 years old

and will have completed 25 years of

continuous state service by June 30,

1980. The 1975 Act requires him to

work until age 55-i.e., 1987--before he

may retire with pension benefits; the

law in effect after Fitzpatrick but

before the 1975 Act would have

permitted his retirement with full

benefits in 1982, when he turns 50.

Under the 1975 Act, Mr. Tyll is

eligible for full retirement benefits

Only after working five years longer

- A67 -

than he would have been required to

work under prior law.

The 1975 Act forces some employees

to choose between working longer than

previous law would have required in

order to receive retirement benefits at

the levels they expected and retiring

prematurely with retirement income

calculated at lower benefit levels.

For example, plaintiff Daniel Clifford,

who is 47 years old and began state

service on September 15, 1959, would

have been entitled to a full pension in

1984 (after 25 years of service) but

for the 1975 Act. However, its

provisions require him either to work

until 1988, when he reaches the age of

55 and thereby qualifies for retirement

with full pension benefits, or to

retire before that time with vested

retirement income on a reduced

- A68 -

actuarial basis, pursuant to amended

Conn.Gen.Stat. §5-166(a). If he

chooses the latter option, Mr. Clifford

will receive something less than the

full pension benefits at age 50 which

he would have obtained had the 1975

Act's retroactive provisions not become

law. Plaintiff Judith Narus is put to

the same choice by the 1975 Act; she

may either work longer than prior law

required to receive benefits at the

usual full pension levels, or retire

before reaching her 55th birthday and

accept benefits calculated at a lower

level.

Finally, the practical effect of

the 1975 Act is to reduce the benefits

of some plaintiffs who have served the

state for less than 25 years, pursuant

to the benefit schedule set forth in

amended section 5-162(d). For example,

- A69 -

under prior law, plaintiff Rose Schewe,

who will have completed fifteen years

of state service on September 10, 1980,

would have received monthly benefits

including 2.5% of her earnings in

excess of the amount on which the state

made Social Security contributions,

multiplied by her years of service.

However, under the 1975 Act, this

component of her benefits will be

calculated on the basis of a 2.0%

multiplier for “excess earnings" if she

retires after reaching age 65, but

before her 70th birthday. Only if she

continues to work until she reaches age

70 will Ms. Schewe become eligible,

under the 1975 Act, to receive benefits

calculated at the 2.5% rate to which

she would formerly have been entitled

at age 65.

- A70O -

D. The Legislative History of the 1975

Act

The 1975 Act had its origins in

House Bill 5176, which was introduced

on the floor of the Connecticut House

of Representatives on June 3, 1975.

See General Assembly Proceedings 1975:

House of Representatives 6342-43. The

Original version of this bill would

have raised the retirement age only for

those who would become state employees

after June 30, 1975. It did not

purport to have any retroactive

effect. The bill was, however, amended

on the floor to provide that one grvup

of employees already in state

service--the members of the plaintiff

Class--would, along with future

generations of state employees, be

Subject to the more stringent age

qualifications for pension

- A7?l -

eligibility. In the words of the

amendment’*s sponsor, “({t]his amendment

restores males who are under age 45 to

the [age] 55 retirement that was in

effect before the recent Court

decision, and it establishe[s] age 55

for females who are presently under age

45." Id. at 6346 (remarks of Rep.

Wright).

After brief debate, the House

passed the bill, as amended. Id. at

6362. The next day, the Senate passed

the bill in the same form. General

Assembly Proceedings 1975: Senate

3590. Neither the House of

Representatives nor the Senate held

public hearings on the legislation

which became the 1975 Act. See id. at

3582 (remarks of Sen. Rome).

- A72 -

A

Although there are no formal

reports explaining the legislature's

purpose in passing the 1975 Act, it is

clear from the debates in both houses

that the General Assembly was reacting

to the decision in Fitzpatrick with a

view toward achieving two related

objectives: (1) putting an end to

Connecticut's policy of permitting

certain state employees to retire with

pension benefits at age 50, which many

legislators believed to be an unduly

early retirement age, and (2) saving

money by reducing the expenses which

the state incurs to fund its share of

the State Employees Retirement System.

On the House floor, the amended

bill's sponsor, Representative Wright,

brought these two aims of the

legislation into sharp focus.

Condemning past Connecticut policy

- A73 -

which allowed some state employees to

retire at age 50, he said: “I don’t

think there is any other state or

probably any municipality that has a

retirement age that allows employees to

retire at age 50 and receive 50% of

their pay. This is far more liberal

than is provided in [sic] any public

employer, and one that I think if we

don't correct it can bankrupt the State

of Connecticut.” General Assembly

Proceedings 1975: House of

Representatives 6346. Citing a report

which estimated that the amended bill

would save between $3,000,000 and

$5,000,000 in 1975-76, Representative

Wright added, “I‘m sure the House will

be able to find a place to use that

three to five million dollars, should

this amendment pass.“ Id. Another

proponent of the amended bill,

- A74 -

)

)

;

Representative Dice, stated:

“(T)]here are very few, if any,

retirement plans where you can

retire at age 50. The only one

that I know is the military

service, and I hope our state

employees are not equivalent to

being in the military service,

where they would have to go

overseas to that extent.”

Id. at 6347-48. Representative Dice

added that Connecticut faced the risk

of bankruptcy if it did not reduce its

pension obligations, comparing the

Situation to that of New York City.

Id. at 6348. Representative Mannix

offered a similar assessment of the

Situation:

“Most, if not all, of the taxpayers

who have a retirement plan in the

State of Connecticut can normally

retire at age 60. They're being

asked by us and the government of

the State to underwrite a

retirement plan at age 50. To me,

this is inexcusable. Something's

got to be done. If we continue on

this way, as has been pointed out,

we're going to end up in

bankruptcy.”

Id. at 6348.

- A7S -

The day after the amended bill

cleared the House, the Senate took up

the measure. The remarks made by the

bill‘s supporters in the upper chamber

paralleled those made by its advocates

in the House. Senator Hennessey

expressed the view that “we're just

trying to straighten out a Court

decision.” General Assembly

Proceedings 1975: Senate 3579. The

thrust of the position of the bill's

supporters was that “50 years of age is

an unreasonable age for retirement,”

id. at 3578 (remarks of Sen. Amenta);

see also id. at 3582 (remarks of Sen.

Fauliso); id. at 3588 (remarks of Sen.

Ciarlone), and that the biil would save

Connecticut $3,600,000 in the next

fiscal year alone, see id. at 3575

(remarks of Sen. Baker); id. at 3586-87

(remarks of Sen. Houley). A study

prepared by the actuary of the pension

- A76 -

a

fund was reported to have established

that, in fiscal year 1975-76, the state

would save $800,000 by prospectively

caising the retirement age for new

employees, and another $2,800,000 by

extending that provision to those

persons already in the state's employ

who would not be eligible to retire

with pension benefits under after June

30, 1980-i.e., the plaintiffs in this

action. Id. at 3587 (remarks of

Senator Houley). As Senator Houley

noted, enacting the amended bill would

permit the state to start realizing

Savings on its appropriations for the

State Employees Retirement Fund in the

very fiscal year for which the

legislature had just passed a budget.

Id.

- A77 -

III. THE PLAINTIFFS‘ CLAIMS

The plaintiffs' principal

contention is that the 1975 Act

operates to impair the state's

contractual obligations to them, in

violation of the contract clause of the

United States Constitution.’°® They

seek a declaratory judgment

establishing that the 1975 Act, as

applied to the plaintiff class, is

unconstitutional, as well as injunctive

relief requiring the defendants to

administer the State Employees

Retirement Act, insofar as it applies

to the plaintiffs, without regard to

the provisions of the 1975 Act. They

do not chalienge the constitutionality

of the prospective application of the

1$75 Act to those who became state

employees after June 30, 1975.

- AMS >

The plaintiffs would require the

state to permit them to retire with

fuli pension rights (a) upon completion

of 25 years of continuous state

service, at age 50; and (b) upon

completion of at least 10, but less

than 25, years of continuous state

service, at age 55. In addition, the

terms of retirement and the benefit

levels for which the plaintiffs would

be eligible would be those which were

applied to all state employees retiring

in the period after this court's

Fitzpatrick decision, but prior to the

1975 Act. These are the same terms and

benefits which the state--consistently

with Title VII--afforded all employees,

regardless of sex, immediately after

the Fitzpatrick decision, and which

were preserved by the 1975 Act for

those employees covered by its

“grandfather clause," Conn.Gen.Stat.

§5-163a.

IV. THE CONTRACT CLAUSE OF

THE UNITED STATES CONSTITUTION

A. Introduction

{1] The constitutional provision

invoked by the plaintiffsS reads

Simply: “No State shall .. . pass any

Law impairing the Obligation of

Contracts ... U.S. Conet. art. I,

§10, cl. 1. However, the analysis of a

contract clause challenge to state

legislation is anything but simple.

While the language of the Constitution

is, on its face, absolute, a

substantial body of Supreme Court cases

demonstrates that the contract clause

does not prohibit every impairment by a

state of contractual obligations. See,

e.g., El Paso v. Simmons, 379 U.S. 497,

85 S.Ct. 577, 13 L.Ed.2d 446 (1965);

Home Building & Loan Association v.

- A80 -

aug. 4 te GD

Bae.eoe.s, 290 U.6. 398, 54 &.Ct. 231,

78 L.Ed. 413 (1934).*’ Nonetheless,

the Supreme Court has recently reminded

us that the contract clause “is not a

dead letter,” Allied Structural Steel

Co. ¥. Spannaus, 438 U.S. 234, 241, 98

Beuee 2Phey “274k, 37 L.EG.24 727

(1978), and that it requires

particularly careful examination of

state legislation which impairs a

contract to which the state itself is a

Barty, 20. at 244 n.15, 98 S.Ct. at

2722 n.15; United States Trust Co. v.

New Jersey, 431 U.S. 1, 22-23, 25-26,

7? Bates 2900, £952 7=1516, 1519, S52

L.Ed.2d 92 (1977).

In United States Trust Co., the

Court, in an opinion by Justice

Blackmun, reaffirmed the continuing

vitality of the contract clause in

modern constitutional law:

- A8l -

431

"Both [Home Building & Loan

Association v. Blaisdell and El

Paso v. Simmons, supra] eschewed a

rigid application of the Contract

Clause to invalidate state

legislation. Yet neither indicated

that the Contract Clause was

without meaning in modern

constitutional jurisprudence, or

that its limitation on state power

was illusory. Whether or not the

protection of contract rights

comports with current views of wise

public policy, the Contract Clause

remains a part of our written

Constitution."

U.8. -€& 264. 97 SCO. @€ 2528.

In United States Trust Co., as

here, the question was whether a state

law violated the contract clause by

impairing a state's own contractual

obligations to private parties. At

issue there was the constitutionality

of a 1974 New Jersey statute which,

together with an identically worded New

York statute, repealed a 1962 covenant

(itself embodied in legislation enacted

by both states) limiting the ability of

the bi-state Port Authority of New York

- A82 -

and New Jersey to use its revenues and

reserves to subsidize unprofitable rail

passenger transportation between the

two states. The plaintiff, a New York

bank, was a substantial holder of Port

Authority bonds subject to the covenant

and was a trustee for two series of

such bonds.

The Court in United States Trust

Co. held that the retroactive appeal of

the 1962 covenant was an unjustifiable

impairment of the state's contractual

obligations to the plaintiff, in

violation of the contract clause.

Citing such venerable authority as

Fletcher v. Peck, 10 U.S. (6 Cranch)

87, 137-39, 3 L.Ed. 162 (1810) and

Trustees of Dartmouth College v.

Woodward, 17 U.S. (4 Wheat.) 518, 4

L.Ed. 629 (1819), the Court observed

that “[Li]lt long has been established

- A83 -

that the Contract Clause limits the

power of the States to modify their own

contracts as well as to regulate those

between private parties." United

States Trust Co. v. New Jersey, supra,

431 U.S. at 17, $7 &.Ct. OO feees ee

the same time, the Court noted, “the

Contract Clause does not prohibit the

States from repealing or amending

statutes generally, or from enacting

legislation with retroactive effects."

Id. (footnote omitted).

[2] Where, as here, it is claimed

that the contract clause prohibits a

state's statutory modification of its

own obligations, the court must

determine whether contractual

obligations within the purview of the

contract clause exist; if so, whether

the state legislation under attack

impaired those obligations; and if

—

- A84 -

there is an impairment of contract,

whether it is forbidden by the

Constitution. See generally United

States Trust Co. v. New Jersey, supra,

S35 U.5. at 21-32, 97 S.Ct. at

1517-1522.

B. Connecticut's Contractual

Obligations to the Plaintiffs

[3,4] A statute gives rise to a

contractual obligation which is subject

to the contract clause “when the

language and circumstances evince a

legislative intent to create private

rights of a contractual nature

enforceable against the State." United

States Trust Co. v. New Jersey, supra,

ee ss ee. 2S, 6 6SFlU SCE. @t 1515

n. 14. In its inquiry into the

existence of a contract within the

meaning of the contract clause, a

- A85 -

—E—— CC —t~S

federal court must “accord respectful

consideration and great weight" to

relevant state law, Indiana ex rel.

Anderson v. Brand, 303 U.S. 95, 100, 58

S.Ct. 443, 446, 82 L.Ed. 685 (1938),

although it is not bound by the state's

law of contracts. Irving Trust Co. v.

Day, 314 U.S. 556, 561, 62 S.Ct. 398,

401, 86 L.Ed. 452 (1942). See

generally Hale, The Supreme Court and

the Contract Clause: o> Cae ¥,

Harv.L.Rev. 852, 852-72 (1944).

Accordingly, the appropriate starting

point for this court's examination of

the question whether Connecticut's

State Employees Retirement Act created

contractual obligations to state

employees is the common law of the

State of Connecticut.

- A86 -

enamel

Contractual Obligation in

Pension Plans Under

Connecticut Law

[5] In the leading case of Bird v.

Connecticut Power Co., 144 Conn. 456,

133 A.2d 894 (1957), the Connecticut

Supreme Court of Errors held that a

non-contributory pension plan in which

employees were not required to

participate created contractual rights

enforceable against a private

employer. In Bird, the court rejected,

in no uncertain terms, the employer's

argument that, as a matter of law, it

had complete discretion to modify its

employees’ expectations of pension

benefits:

“A board of directors cannot

legally strip an employee of the

benefits of a pension plan where

the employee has complied with the

terms of the offer of a pension,

Since the purposes of the plan

could be readily frustrated at the

- A87 -

whim of the directors. ... Even

where an employer declares the plan

is within the absolute discretion

of the directors, the court will

interpret the plan as a whole so as

to give effect to its general

purpose in securing the loyalty and

continued service of the employees,

and the employer may not defeat the

employees’ reasonable expectations

of recovering the promised reward.

Bird v. Connecticut Power Co., supra,

144 Conn. at 463, 133 A.2d at 897

(citations omitted).

In Wyper v. Providence Washington

Insurance Co., 533 F.2d 57 (2d Cir.

1976), the court affirmed a decision by

Judge Blumenfeld of this court,

following Bird and holding that under

Connecticut law, “a pension plan

creates contractual rights and

court review may not be defeated

through reservation of discretionary

powers in the pension board.” Id. at

63 (footnote omitted). In Wyper,

- ABB -

which, like Bird, involved a private

employer's pension plan, Judge Gurfein

reiterated the contractual nature of

pension rights under Connecticut law:

“Later Connecticut opinions citing

Bird treat it only as establishing

that informal pension plans give

rise to contractual rights which

cannot be defeated by assertion of

discretionary power, and we agree.

See Bordon v. Skinner Chuck Co., 21

Conn.Supp. 184, 150 A.2d 607, 610

({Super.Ct.Hartford Cty.] 1958);

Ellis v. Emhart Mfg. Co., 150 Conn.

501, 191 A.2d 546, 549 (1963).”

533 F.2d at 63 n.9.

If an “informal” pension plan in

which employees are not required to

participate and to which they

contribute nothing of pecuniary value

creates a binding contract, it would

seem to follow, a fortiori, that a

highly structured and formal pension

plan--like the State Employees

Retirement System--in which the

employees must participate and into

which they must make monetary

- AB9 -

—— <<

contributions gives rise to obligations

and rights which are contractual in

nature. Further examination of

relevant Connecticut cases confirms

this impression and strongly suggests

that the rationale of Bird, Wyper and

the cases cited therein applies with

equal force to the facts of this case.

In Bird, the court emphasized that

the employee “gave up other

opportunities for employment because of

the security he felt the pension

benefits of the defendants afforded

him." Bird v. Connecticut Power Co.,

Supra, 144 Conn. at 462, 133 A.2d at

897. Indeed, the very purpose of the

defendants’ offer of a pension was to

induce the plaintiff to act as he did;

“securing the loyalty and continued

service of the employees” was the

employer's goal in offering pension

- A90 -

4 i

benefits. Id., 144 Conn. at 463, 133

A.2d at 897°"° Similarly, in Bordon

v. Skinner Chuck Co., supra, the

Superior Court, following Bird,

stressed that the offer of a

pension-like “bonus” may act not only

as an inducement for a prospective

employee to accept the offered

position, but also as an incentive for

one already in the employer's service

to remain in his or her job. If the

effect of such a promise is “to induce

the employee to refrain from quitting,

and in reliance thereon he does

refrain, then there is sufficient

consideration to support an enforceable

contract.” Bordon v. Skinner Chuck

Co., supra, 21 Conn. Supp. at 190, 150

A.2d at 610.’’

In Bird and its progeny, the

Connecticut courts held that an

- A9l -

_—

employee who relies upon an offer of

deferred benefits to his or her

detriment, and to the benefit of the

employer who gains the employee's

valuable services and loyalty as a

consequence thereof, has expectations

which are protected by the law of

contracts. The facts in the case at

bar demonstrate the existence of

precisely this type of reliance. The

state has admitted that the plaintiff

class consists entirely of persons who

either accepted state employment,

eschewing otherwise more lucrative job

Opportunities to work for Connecticut,

in reliance upon the promises of

pensions contained in pre-1975 law, or

who remained in state service,

foregoing other employment

opportunities, in reliance upon the law

as modified by Judge Clarie's decision

in Fitzpatrick. Under the logic of

- A92 -

Bird and similar cases decided under

Connecticut law, the plaintiffs’

relationships with the state with

respect to their expected pensions are

contractual in nature.

This conclusion is confirmed by the

application of basic and long-standing

principles of contract law to the

admitted facts of the instant case.

The common law of contracts clearly

protects, in various contexts, the type

of reliance interest which, the

defendants concede, the plaintiffs

possessed prior to the enactment of the

1975 Act. See, e.g., Fisk v. Policy

Jury of Jefferson, 116 U.S. 131,

133-34, 6 S.Ct. 329, 330, 29 L.Ed. 587

(1885) (implied contract theory

protects reliance interest of public

officer who performs services on the

basis of a promise of a salary level

- A93 -

embodied in legislation); Restatement

(Second) of Contracts §§ 90 (Tent.

Draft No. 2, 1965), 45 (Tent. Draft No.

1, 1964).°° See generally 1A Corbin

on Contracts §§ 193-207 (1963 ed.);

Fuller & Perdue, The Reliance Interest

in Contract Damages, 46 Yale L.J. 52,

337 (1936-37).

Indeed, the courts of Connecticut

have been in the forefront of this

common law development, conferring the

protection of the law of contracts on

the reliance interests of promisees in

positions like those of the plaintiffs

here even before the first Restatement

of Contracts was published. In State

ex rel. March v. Lum, 95 Conn. 199, 111

A. 190 (1920), the Supreme Court of

Errors held that teachers who were

promised a salary increase by a school

board, and who relied in silence upon

- A94 -

RE LN

that promise, forbearing from

exercising their options to leave their

jobs, had a contractual right to the

increase in pay. In the court's words,

the teachers “gave up something that

was legally theirs, and the town has

received the benefit of their

Surrender.” State ex rel. March v.

Lum, supra, 95 Conn. at 204, lll A. at

192. This, the court held, brought the

teachers’ case within the rule of Rice

v. Almy, 32 Conn. 297, 304 (1864):

“([I]£ aman by a promise induces

the promisee. . . to do some act or

part with some chattel, title,

interest, privilege, or right,

which the law regards as of some

value, there is sufficient

consideration for the promise."

State ex rel. Marsh v. Lum, supra, 95

Coen. o0 206, iki A. @t 192. See also

Tilbert v. Eagle Lock Co., 116 Conn.

337, 361-62, 165 A. 205, 207 (1933).

As in Marsh, the plaintiffs’

forbearance, which in this case was

- A95 -

induced by the state's offer of pension

benefits on the terms in effect prior

to the 1975 Act, constitutes

consideration--even apart from the

plaintiffs’ contributions to the State

Employees Retirement Fund--for the

state's promise.

The contributions which the

plaintiffs have made to the State

Employees Retirement Fund since

becoming state employees’ further

support the conclusion that their

relationships with the state are

contractual in nature. Standing alone,

these payments, which are required as a

condition of entering the remaining in

‘state service, constitute consideration

under Connecticut law. See e.g.,

Osborne v. Locke Steel Chain Co., 153

Conn. 527, 331, 218 A.2d@ 526, 529

(1966) (defining consideration as “a

- A96 -

set

benefit to the party promising, or a

loss or detriment to the party to whom

the promise is made"); Finlay v.

Swirsky, 103 Conn. 624, 631, 131 A.

420, 423 (1925) (same). This

conclusion is in no way affected by the

fact that the contributions of

employees comprise but a

fraction--albeit a substantial

one’'--of the benefits paid out of

the retirement fund, for the size of

the benefit or detriment which

constitutes consideration is irrelevant

under Connecticut law. See Osborne v.

Locke Steel Chain Co., supra, 153 Conn.

at 332, 216 A.2G at 330; Ciaecez ¥,

Sigourney, 17 Conn. 51ll, 517 (1846);

see generally 1 Corbin on Contracts

§127 (1963 ed.). Indeed, courts in

other jurisdictions have held that the

fact that a public employee must make

contributions to a pension fund compels

- A97T -

a finding that his or her expectations

are enforceable contract rights, not

mere gratuities. See, e.g., Campbell

v. Judges' Retirement Board, 378 Mich.

169, 179-80, 143 N.W.2d. 755, FS? (1366)

(state court judges’ pensions); Hickey

v. Pension Board, 378 Pa. 300, 305-07,

106 A.2d 233, 235-36 (1954) (city

employees’ pensions).

oe Mere “Gratuities” or

Contractual Rights?

Not surprisingly, the defendants do

not question the plaintiffs’ strong

reliance interest or the existence of

consideration sufficient to support a

contract. Nor do they dispute that

under Connecticut law the plaintiffs

would possess enforceable contractual

rights if this case arose in the

context of a private employer's pension

- A98 -

plan. Rather, the defendants’

principal argument is that because the

state is their employer, the plaintiffs

possess mere “gratuities” offered them

by a sovereign, rather than rights

conferred by contract law.’* This

proposition is, however, supported

neither by Connecticut precedent nor

logic.

No Connecticut court has been

called upon to consider whether a

public employee's expectation of

pension benefits, like that of the

private employee in Bird is contractual

in nature. The only indication that it

is possible that the Bird rule might

not apply to the case at bar is to be

found in ambiguous dicta in an opinion

of the Supreme Court of Errors written

fifteen years prior to Bird. In State

ex rel. Kirby v. Board of Fire

- ASD -

Commissioners, 129 Conn. 419, 29 A.2d

452 (1942), the court affirmed a

judgment for a retired Hartford fireman

who sought a pension which was provided

for by the city charter, but which the

board administering the pension plan

deciined to award him. In rejecting

one of the board's arguments, the court

wrote:

"The defendants further contend

that the plaintiff had no vested

right to retirement but that his

retirement lay in the discretion of

the board. It may be true that

under retirement acts generally

even where the person eligible for

retirement has contributed by way

of dues or assessments to make up

the retirement fund he has no

vested right to retirement. That

does not mean, however, that a

charter provision granting

retirement rights may be

overridden by a municipal board so

as to deprive an employee of his

right to retirement as fixed by the

Cmercer, «2

State ex rel. Kirby v. Board of Fire

Commissioners, supra, 129 Conn. at 426,

29 A.2d at 455-56 (emphasis added)

(citation omitted).

- AlOO -

—_

Insofar as it might be relevant

here, this language is inconclusive.

On the one hand, the court suggested

that “it may be true," as a general

propcsition, that no contractual rights

arise from statutory employee pension

plans. On the other hnand, the court

found that the city charter granted the

plaintiff “his right to retirement”

with the benefits promised by the city;

this implies that, at least in some

unspecified circumstances, public

employees may have contractual rights

to pensions provided by law.

To the limited extent that the

ambiguous Kirby dicta do appear to

Support the defendants’ argument that a

state pension is merely a “gratuity”,

such language is of highly uncertain

precedential value after Bird v.

Connecticut Power Co., supra. The

- Alodl -

contention of the defendants in Kirby

that a pension board has complete

discretion to deprive an employee of

the pension which he expected under the

terms of the board's earlier offer was

not squarely addressed by the court in

that case. However, this notion was

expressly rejected, at least as applied

to the private sector, in Bird, where

the court gave no indication that its

holding should be limited to cases

involving private employers’ pension

offers. See Bird v. Connecticut Power

Co., supra, 144 Conn. at 463, 133 A.2d

at 897.

In the absence of Connecticut

precedent which is directly on point,

the defendants urge that the Bird rule

should not be applied to this case, and

instead refer the court to a line of

cases from other jurisdictions which

- AlQ2 -

hold that public employees’ pensions

* However, the

are “gratuities.”

court finds the logic of these cases to

be anything but compelling. To follow

these authorities would require the

court to hold that a pension is a

“gratuity” if offered by the state,

even though the same pension would

undoubtedly give rise to contractual

rights under Connecticut law if it were

offered by a private employer under

like circumstances. In support of this

distinction, the defendants rely

entirely on the fact that the state,

unlike a private employer, possesses

attributes of sovereignty.

While Connecticut's sovereignty is

undeniable, so is its ability to enter

into binding contracts to procure the

services which it requires to function

on a daily basis. See United States

- AlO3 -

<<

aaa,

Trust Co. v. New Jersey, supra, 431

U.S. at 24, 97 S.Ct. at 1519 (a state’s

“power to enter into effective

financial contracts cannot be

questioned”). The fact that in our

constitutional system, the state

possesses a measure of sovereignty in

no way supports the conclusion that its

offer of pension benefits to its

employees is gratuitous rather than

contractual. See Cohn, Public Employee

Retirement Plans--The Nature of the

Employees’ Rights, 1968 U. of

I111.L.Forum 32, 37.

Another difficulty with the notion

that the pensions offered by

Connecticut are “gratuities” is to be

found in the state’s own constitution.

Article 1l1l, section 2 of the

Connecticut Constitution provides:

§2. Extra compensation to public

officers prohibited

Neither the general assembly

nor any county, city, borough, town

or school district shall have power

to pay or grant any extra

compensation of any public officer

employee, agent or servant or

increase the compensation of any

public officer or employee, to take

effect during the continuance in

office of any person whose salary

might be increased thereby, or

increase the pay or compensation of

any public contractor above the

amount specified in the contract.

This provision, which dates to the

nineteenth century,’* prohibits the

legislature from bestowing “extra

compensation” or gratuities on the

State’s employees. “(T]he purpose of

the article [is] to take from the

public bodies therein mentioned

the power to make gratuitous

compensation to public officers and

employees in addition to that which is

established by law or contract ....”

Conn. 660, 665, 71 A. 906, 907 (1909)

- AlO5 -

(ordinance increasing police officers’

salaries did not confer an

unconstitutional gratuity). See also

State ex rel. Marsh v. Lum, supra, 95

Conn. at 205-206, 1ll A. at 192 (school

board's grant of a pay increase to

teachers was a contract, not a gratuity

barred by the state constitution);

McGovern v. Mitchell, 78 Conn. 536,

569, 63 A. 433, 446 (1906).

Through Article 1l, section 2, the

sovereign people of Connecticut

expressly denied the legislature the

power to make gratuitous payments to

state employees--the very power which

the defendants now misguidedly argue

the legislature exercised when it

passed the State Employees Retirement

Act. The court declines to find that

the General Assembly exceeded its

constitutional authority when, in 1939,

- Al0Q6 -

ical: iii

it enacted the state's comprehensive

public employee retirement laws.’’

Rather, the court concludes that the

State Employees Retirement Act was in

fact designed to achieve the proper

legislative purpose of providing a form

of deferred compensation to qualified

state employees as an incentive for

them to enter into, and remain in,

state service. See Alcorn ex rel. Hyde

v. Dowe, 10 Conn.Supp. 346, 350

(Super.Ct. Hartford Cty.), rev'd on

other ground sub nom. State ex rel.

Hyde v. Dowe, 129 Conn. 266, 28 A.2d 12

(1942) (“the fundamental theory of the

Act is that those who have rendered

long and faithful service to the State

shall be compensated after they

retire").

Because Connecticut's sovereignty

does not compel a finding that the

| - Al07 -

nature of the plaintiffs' expectations

differs from those of similarly

Situated employees in the private

sector in any legally significant way,

the court finds the Bird rationale

applicable to the case at bar. This

result is supported by the trend of

cases in other states holding that, at

least where employees contribute to the

pension fund (as Connecticut's

employees are required to do), a public

pension plan is not a gratuity, but

rather gives rise to binding

contractual rights and

6

obligations.’ See, e.g., In re

State Employees' Pension Plan, 364 A.2d

1228 (Del. 1976); Miles v. Tennessee

Consolidated Retirement System, 548

S.W.2d 299 (Tenn. 1976); Pyle v. Webb,

253 Ark. 940, 489 S.W.2d 796 (1973);

Sylvestre v. State, 298 Minn. 142, 214

N.W.2d 658 (1973); Smith v. City of

- Al0& -

Dothan, 279 Ala. 571, 188 So.2d 532

(1966); Yeazell v. Copins, 98 Ariz.

109, 402 P.2d 541 (1965); Police

Pension & Relief Board v. Bills, 148

Colo. 383, 366 P.2d 581 (1961); State

Teachers’ Retirement Board v. Giesel,

12 Wis.2d 5, 106 N.W.2d 301 (1960);

Eisenbacher v. City of Tacoma, 53

Wash.2d 280, 333 P.2d 642 (1958);

Wright v. Retirement Board, 390 Pa. 75,

134 A.2d 231 (1957); Wallace v. City of

Fresno, 42 Cal,2d 180, 265 P.2d 884

(1954); Tait v. Freeman, 74 S.D. 620,

57 N.W.2d 520 (1953): Payne v. Board of

Trustees, 76 N.D. 278, 35 N.W.2d 553

(1948).

The numerous courts which have

rejected the archaic notion that public

employees’ pensions are merely

gratuities which may be revoked or

8488H

- AlO9 -

Significantly modified at the whim of

the legislature have recognized that

one who is offered a pension by the

state as an inducement to join and

remain in the state's employ is in

precisely the same position as one,

such as the plaintiff in Bird, who is

offered a similar pension for the same

reasons by a private employer. In both

instances, the offered pension is a

form of deferred compensation upon

which the employee makes his or her

decision to accept and continue in a

job. See Wright v. Retirement Board,

supra, 390 Pa. at 79, 134 A.2d at 233.

In both cases, the employer and

employee each give up something of

value: the employer makes a promise to

pay compensation in the future, and the

employee forbears from accepting other

employment. In both cases, each

obtains something of value: the

employee gains an expectation of

- AllO -

deferred compensation upon retirement,

while the employer receives valuable

services and, perhaps, a measure of

loyalty from the employee. See Yeazell

v. Copins, supra, 98 Ariz. at 114-15,

402 P.2d at 543.

The contractual nature of modern

contributory public employee pension

plans, and their similarity to private

pension plans, was placed in historical

perspective by the Supreme Court of

Delaware in holding that the “gratuity"

doctrine no longer comports with modern

realities:

"Originally a pension was a

gratuity usually offered to a retiring

officer or executive of a company to

show the company's appreciation for

past services rendered. Those first

pension systems were non-contributory

and, although a person might have

expected to receive a pension, the

recipient usually did not accept

employment or continue therein in

reliance upon the expectation of a

pension. As time and the nature of

employment relationships passed,

employers--even governments--found it

necessary as a matter of competition to

- Alll -

offer a pension plan benefit as an

inducement for the hire or retention of

employees. Indeed, in today's economy,

the terms and conditions of an

employer's pension plan play an

important role in inducing a man to

enter or continue in the service of

that employer. In other words, it is a

part of the consideration for the

contract of hire."

Dorsey v. State ex rel. Mulrine, 301

A.2d 516, 518 (Dei. 1972) (emphasis

added). See also Hickey v. Pension

Board, 378 Pa. 300, 304-05, 106 A.2d

233, 235-36 (1954).

As noted at greater length

previously, the facts of this case

demonstrate the contractual nature of

the relationship between the state and

the plaintiffs. Following the trend of

better-reasoned modern cases from other

jurisdictions, and consistently with

Connecticut contract law and the

rationale of the opinion of the

Connecticut Supreme Court of Errors in

- All2 -

Bird, the court holds that the

enactment of the State Employees

Retirement Act gave rise to contractual

rights and obligations which are

cognizable under the contract clause of

the United States Constitution. In so

holding, the court does not denigrate

the sovereignty of the State of

Connecticut. While the state's

sovereignty is irrelevant to the

existence of a contract, it is an

important factor in determining whether

any contractual obligation of the state

has been unconstitutionally impaired.

The court duly considers questions of

state sovereignty in determining the

constitutionality of the claimed

impairment of Connecticut's contractual

obligations.’’

- All3 -

2. The Content of the Plaintiffs'

Contractual Rights and

Connecticut's Obligations

[6] The content of the plaintiffs’

contractual rights and Connecticut's

obligations, to the extent that they

are affected by the 1975 Act, merits

some consideration. The state is not,

of course, contractually obligated to

pay any employee pension benefits until

he or she meets all the qualifications

established by law, including

completion of the requisite period of

service and attainment of the requisite

age. Therefore, members of the

plaintiff class lack, as of this date,

vested rights to receive pension

benefits. This does not mean, however,

that they are without rights protected

by the law of contracts and the

contract clause of the United States

- All4 -

Constitution. Because of their

reliance interest and the consideration

which they have given for the state's

offer of pension benefits, the

plaintiffs have a contractual right to

continued membership in the State

Employees Retirement System under the

terms for retirement ages and benefits

prevailing immediately prior to the

adoption of the 1975 Act. See Wright

v. Retirement Board, supra, 390 Pa. at

79, 134 A.2d at 233; Police Pension &

Relief Board v. Bills, supra, 148 Colo.

at 390, 366 P.2d at 583 (although

pension rights are only vested at the

time of retirement, a “limited vesting"

occurs upon commencement of employment,

so that the pension plan, as it relates

to those in state service, cannot be

abolished or adversely affected in any

Substantial manner). Cf. Restatement

(Second) of Contracts §45 &

- Al15 -

Illustration 8 (Tent. Draft No. 2,

1965) (when unilateral option contact

is offered, the offeree possesses a

contractual right from the time he

begins performance in reliance upon the

offer).

[7] The substance of the state's

contractual obligations, and of the

plaintiffs’ corresponding rights, is

not to be found in the bare words of

the State Employees Retirement Act as

it read prior to its 1975 amendment.

Rather, this court must look to the

statute as it was modified by the

decision in Fitzpatrick v. Bitzer.

Viewing the matter otherwise would in

effect undo this court's holding in

Fitzpatrick, as applied to the male

plaintiffs, by restoring the

effectiveness of the very

discriminatory provisions of state law

- All6 -

which violated Title VII.’* As this

court held in Fitzpatrick, Title VII

requires that if the state obligates

itself to grant women retirement rights

at age 50 under certain conditions, it

must grant men the same rights under

the same conditions. See Fitzpatrick

v. Bitzer, supra, 390 F.Supp. at 290.

Because women in the plaintiff class

could expect, under pre-1975 law, to

retire with pensions at age 50 after 25

years of continuous state service, the

court is constrained by Title VII and

Fitzpatrick to hold that similarly

Situated males in the class had the

Same contractual expectations at the

time the 1975 Act was adopted.

While this conclusion might at

first seem to grant male plaintiffs

greater rights than they had reason to

expect, it is in fact consistent with

the scope of their admitted reliance

interest. After this court's decision

in Fitzpatrick, in which the state

acquiesced, Connecticut enforced the

law in accordance with Judge Clarie's

decision, permitting men to retire on

the terms which previously had applied

only to women. As the defendants

admit, males in the plaintiff class

relied upon this application of the law

after September 1974 in forbearing from

seeking and accepting alternative

employment.** Since the male

plaintiffs’ contractual rights

immediately prior to the 1975 Act were

defined by their reliance interest,

their rights were in fact, as they must

be under Title VII, identical to those

of the female members of the plaintiff

class.

- All8 -

C. Connecticut's Impairment o

f Its

Contractual Obligations

The contract clause prohibits

certain impairments by states of

contractual obligations. Recent

Supreme Court cases have been concerned

with whether such impairments are

merely “technical” in nature, United

States Trust Co. v. New Jersey, Supra,

633 U.S. @6 2as 97 BS-GCO. Ot. 9487. “The

severity of the impairment measures the

height of the hurdle the state

legislation must clear." Allied

Structural Steel Co. v. Spanneaus,

Supra, 438 U.S. at 245, 98 S.Ct. at

2723. The defendants have conceded

that if prior law created contractual

Obligations on the part of the state,

the 1975 Act represents an impairment

of Connecticut's obligations to the

40

plaintiffs. The court finds,

- All9 -

moreover, that the acknowledged

impairment here is not a “technical”

one.

The 1975 Act requires the

plaintiffs to work up to five

additional years in order to obtain the

benefits which the state promised them

under the contract created by prior

law. It reduces, as a practical

matter, the retirement income which

members of the plaintiff class can

expect to receive, and in some

instances will prevent class members

from receiving pension benefits

altogether. Because the 1975 Act thus

Operates to reduce substantially the

value of the plaintiffs’ contractual

expectations without providing them

with any compensatory benefits, it

constitutes a significant impairment of

the state's contractual obligations to

ae oe): ae

the plaintiffs. See e.g., In re State

Employees’ Pension Plan, supra, 364

A.2d at 1234-36 (Delaware statute

permitting invasion of pension fund

into which beneficiaries made

contributions for the payment of

benefits to non-contributing employees

violated the contract clause of the

federal Constitution); Sylvestre v.

State, supra, 298 Minn. at 155, 214

N.W.2d at 666 (Minnesota statute

depriving retired judges of the

benefits of an “escalator” provision

which tied their pensions to the

Salaries of active judges violated the

contract clause of the United States

Constitution and an analagous provision

in the Minnesota Constitution); Opinion

of the Justices, 364 Mass. 847, 864,

303 N.E.2d 320, 329 (1973) (proposed

statute materially increasing the

required contributions of state

Pay ty &. 3% Co

employees to pension fund without

increasing the benefits they ultimately

could expect was “presumptively

unconstitutional” under the contract

clause). Cf. United States v.

Larionoff, 431 U.S. 864, 879-82, 97

S.Ct. 2150, 2159-60, 53 L.Ed.2d 48

(1977) (statute repealing provision for

reenlistment bonuses for members of

Navy who agree to extend their terms of

service held to apply only

prospectively; retroactive application

would interfere with “contractual

entitlements" and create “serious

constitutional questions"); Caola v.

United States, 404 F.Supp. 1101,

1106-07 (D.Conn. 1975) (Blumenfeld, J.).

Because the facts of this case

demonstrate an undeniable “[s]Jevere

impairment" of contract, the court must

undertake “a careful examination of the

- Al22 -

nature and purpose of the state

legislation.” Allied Structural Steel

Co. v. Spannaus, supra, 438 U.S. at

4243, 938 S.Ct. at 2723.

D. The Unconstitutionality of

Connecticut's Impairment of Its

Contractual Obligations

a% The “Reserved Powers" Doctrine

[8] This examination must begin

with an inquiry into the issue of

whether the “reserved powers" doctrine

shields the state from the contract

clause challenge. As the Supreme Court

has stated, a court “must attempt to

reconcile the strictures of the

Contract Clause with the ‘essential

attributes of sovereign power,’ [Home

Building & Loan Association v.

Blaisdell, supra, 290 U.S.] at 435, [54

S.Ct. at 239,] necessarily reserved by

the States to safeguard the welfare of

their citizens. Id., at 434-440, [54

S.Ct. at 238-240.]" United States

Trust Co. v. New Jersey, supra, 431

U.S. at 21, 97 B.C. && 3537.

[9] Where, as in the case at bar, a

state is found to have impaired the

obligation of its own contract, the

"reserved powers" doctrine imposes on a

court the obligation to undertake the

inquiry described in United States

Trust Co. v. New Jersey, supra:

"The initial inquiry concerns the

ability of the State to enter into

an agreement that limits its power

to act in the future. As early as

Fletcher v. Peck, the Court

considered the argument that ‘one

legislature cannot abridge the

powers of a succeeding

legislature.' 6 Cranch, at 135.

It is often stated that ‘the

legislature cannot bargain away the

police power of a State.' Stone v.

Missission:, 101 U.S. 814, 817, {25

L.Ed. 1079] (1880). This doctrine

requires a determination of the

State's power to create irrevocable

- Al24 -

contract rights in the first place,

rather than an inquiry into the

purpose or reasonableness of the

subsequent impairment. In short,

the Contract Clause does not

require a State to adhere to a

contract that surrenders an

essential attribute of its

sovereignty."

SS. 43,0 Ot. gas Sr SCE. St 2518

(footnote omitted).

As the Court observed in United

States Trust Co., earlier Supreme Court

decisions divided the powers of the

states into those which could not be

“contracted away" (such as the police

power and the power of eminent domain)

and those which a state could exercise

in a manner which would bind it in the

future; chief among the latter were the

taxing and spending powers. United

States Trust Co. v. New Jersey, supra,

$31 U.S. at 23<24 & nn... 20-21, 397 §.Ct.

at 1518 & nn. 206-21. Of this historic

dichotomy, Justice Blackmun wrote for

the Court:

"Such formalistic distinctions

perhaps cannot be dispositive, but

they contain an important element

of truth. Whatever the propriety

of a State's binding itself to a

future course of conduct in other

contexts, the power to enter into

effective financial contracts

cannot be questioned.”

431 U.S. at 24, S? S.Ct. st 2508

(emphasis added).

[10] A purely financial

obligation--such as the promise in

United States Trust Co. not to deplete

the revenues and reserves securing the

bonds of the Port Authority, or the

promise here to pay state employees

retirement benefits established by

state law--"“may not be said

automatically to fall within the

reserved powers that cannot be

contracted away." United States Trust

Co. v. New Jersey, supra, 431 U.S. at

24-25, 97 S.Ct. at 1519. Accordingly,

the 1975 Act cannot escape further

judicial scrutiny under the contract

- Al26 -

clause on the ground that the “reserved

powers” doctrine prohibited Connecticut

from entering into a binding contract

to provide pension benefits for its

employees.

* Judicial Scrutiny Under the

“United States Trust Co."

Tests

{11] An exercise of the spending

power which creates a contract whose

enforcement is not barred by the

“reserved powers" doctrine may

nonetheless be modified by the state

legislature in certain circumstances.

While the 1975 Act enjoys no immunity

from a challenge under the contract

clause merely because its predecessor

statutes were passed in the exercise of

the legislature's power to expend money

from the public treasury, it may yet

- Al27 -

pass constitutional muster if it is

“both reasonable and necessary” to

“serve an important public purpose.”

United States Trust Co. v. New Jersey,

431 U.S. et 29, 37 €.Ct. at ES2k3 ie.

at 25, 97 S.Ct. at 1519 (emphasis

added). However, as Justice Blackmun

has noted, the application of the tests

of necessity and reasonableness

requires a much greater degree of

judicial scrutiny in cases, such as

this one, invoiving legislation which

purports to abrogate a state's own

financial obligation than in cases

involving an impairment by the state of

purely private contracts.*'

"“{C]omplete deference to a

legislative assessment of

reasonableness and necessity is not

appropriate because the State's

self-interest is at stake. 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

- Al28 -

what it regarded as an important

public purpose, the Contract Clause

would provide no protection at all."

United States Trust Co. v. New Jersey,

supra, 431 U.S. at 26, 97 S.Ct. at 1519

(footnote omitted). *’

[12] As the legislative history of

the 1975 Act demonstrates, the twin

purposes of the legislation were the

correction of what the legislature

deemed an imprudent policy of allowing

some state employees to retire with

pension benefits at age 50 and the

reduction of state spending. The

state's decision to establish or change

a policy of permitting its employees to

retire with pension benefits at

whatever age the legislature

chooses--whether 50, 55, or a higher

age--is one which the court does not

question, for the wisdom of such a

policy is not a proper concern of this

- Al29 -

court. The desirability of reducing

the state's financial burdens is beyond

doubt. Without questioning that the

state's objectives here are “important

public purpose[s]"“ within the meaning

of the test established by the Supreme

Court in United States Trust Co., the

court must nonetheless examine the 1975

Act to determine whether it was both

“necessary” to the achievement of these

policy goals and “reasonable in light

;

of the surrounding circumstances. "**

See United States Trust Co. v. New

Jersey, supra, 431 U.S. at 31, 97 §.Ct.

at 1522. If the 1975 Act fails either

of these tests, it must be held

unconstitutional. The court finds that

it faile Both.

- Al30 -

(a) Necessity

The inquiry into the “necessity”

component of the United States Trust

Co. standard “can be considered on two

levels": first, whether “a less

drastic modification" of contractual

obligations would have been sufficient

to accomplish the state‘s purposes, and

second, whether, without modifying its

obligations at all, the state “could

have adopted alternative means of

achieving [its] goals ... ." United

States Trust Co. v. New Jersey, supra,

431 U.S. at 29-30, 97 S.Ct. at

1521-1522. It is no answer that

“choosing among these alternatives is a

matter for legislative discretion,”

Since

"a State is not completely free to

consider impairing the obligations

of its own contracts on a par with

other policy alternatives.

Similarly, a State is not free to

- Al3l -

impose a drastic impairment when an

evident and more moderate course

would serve its purposes equally

well.”

United States Trust Co. v. New Jersey,

supra, 431 U.S. at 30-31, 97 S.Ct. at

1522.

The General Assembly clearly could

have accomplished the first goal of the

1975 Act--correcting what it believed

to be an unsound policy of permitting

some state employees to retire with

pensions as early as their 50th

birthdays--without impairing any of the

state's contractual obligations. *“

Having originally determined that

retirement with pension benefits at age

50 is, in some circumstances,

appropriate, the legislature is

certainly entitled to reconsider its

judgment and raise the retirement age

to 55 or any other age it deems

- Al32 -

> However, the state

appropriate. *

could have attained this goal without

affecting the contractual rights of the

plaintiffs; indeed, to the extent that

the 1975 Act applies

prospectively--i.e., to those who were

not in state service as of its

effective date--the legislature has

accomplished this purpose without

injuring contractual rights. The

“evident and more moderate course,”

United States Trust Co. v. New Jersey,

supra, 431 U.S. at 3l, 97 S.Ct. at

1522, of a purely prospective change in

the retirement ages serves

Connecticut's unquestioned interest in

establishing what its legislature

considers a more reasonable scheme of

retirement ages equally well and

without impairing the obligations of

its contracts.

- Al33 -

The second purpose of the 1975

Act--saving money--could likewise have

been accomplished without affecting the

contractual rights and obligations

created by the State Employees

Retirement Act, as modified by

Fitzpatrick and as in force at the time

the legislature passed the 1975 Act.

The Generai Assembly is of course free

to choose among legislative options

which would have the laudatory effect

of reducing the burdens borne by

Connecticut's taxpayers. However,

nothing in the record indicates that it

was impossible for the legislature to

reduce state spending without

abrogating the state's contract with

the plaintiffs. Indeed, common sense

suggests the existence of other

options; the legislature must have had

available to it myriad alternative ways

of exercising fiscal restraint without

- Al34 -

affecting constitutionally protected

rights.

This is not a case where the

legislature found itself confronted by

a dire fiscal emergency which impaled

the state on the horns of the dilemma

of either repudiating its contractual

obligations or ceasing to perform such

basic governmental functions as

protecting its citizens’ health, safety

and welfare. This case is thus readily

distinguishable from Ropico, Inc. v.

City of New York, 425 F.Supp. 970

(S.D.N.Y. 1976) and Subway-Surface

Supervisors Association v. New York

City Transit Authority, 44 N.Y.2d. 101,

404 8. 7.6.20):323,.$ 373. 8.2.20 364

(1978), two important New York cases

which recently upheld state legislation

Challenged under the contract clause.

- Al35 -

In Ropico, which was decided before

the Supreme Court's decision in United

States Trust Co., the court upheld

against a contract clause challenge

state legislation which suspended for a

three-year period repayment of the

principal on certain short-term notes

issued by the City of New York, but

which permitted the affected

noteholders either to exchange their

notes for the longer-term obligations

of a special state agency (the

Municipal Assistance Corporation) or to

obtain interest on their notes until

the principal was repaid.*® In

Subway-Surface Supervisors Association,

the court held that the contract clause

did not prohibit a temporary freeze on

the wages of New York City employees as

part of another statute designed to

alleviate the city’s fiscal emergency.

- Al36 -

The statutes under challenge in

Ropico and Subway-Surface Supervisors

Association were both passed by the New

York Legislature, in extraordinary

sessions, on the basis of detailed

legislative findings of fact which

spelled out the conditions that

constituted a grave emergency,

threatening the city’s very existence

7

as a viable governmental entity. °*

In both Ropico and Subway-Surface

Supervisors Association, the

legislation under attack was necessary

to prevent an unparalleled financial

Crisis from, in the words of the

Legislature, “almost permanently

destroy[ing] the fiber of the

048

city. Connecticut was not backed

into any such corner in 1975;*’ the

General Assembly which passed the

legislation under attack in this action

was not forced to choose between

abrogating its contractual commitments

Or permitting the state to become

insolvent, and thereby unable to

continue to function as a viable

governmental entity.

Accordingly, the court finds that

the retroactive application of the 1975

Act to the plaintiffs cannot be

justified, under the United States

Trust Co. test, aS an impairment of

contractual obligations which was 7

necessary to achieve the state's

concededly legitimate and important

purposes.

(b) Reasonableness

As applied to the plaintiff class,

the 1975 Act is not “reasonable in

light of the surrounding

circumstances,” as required by United

- Al38 -

States Trust Co. v. New Jersey, Supra,

42% US. GE 9a St BE. ok 582. *

The Court there rejected New Jersey's

argument that unforeseen changes

occurring after the adoption of a 1962

bondholders' covenant justified as

"reasonable" 1974 legislation which

repealed the 1962 covenant and impaired

the contractual obligations established

by that covenant. In doing so, the

Court indicated that unforeseen

subsequent circumstances might, in an

appropriate case, be sufficient to

demonstrate that a law impairing

pre-existing contractual obligations

was “reasonable in ight of the

Surrounding circumstances.” Referring

to El Paso v. Simmons, supra, the Court

wrote:

"There a 19th century statute had

effects that were unforeseen and

unintended by the legislature when

Originally adopted. As a result

speculators were placed in a

position to obtain windfall

benefits. The Court held that

adoption of a statute of limitation

[for the reinstatement rights of

purchasers of state land who had

defaulted on their interest

obligations] was a reasonable means

to ‘restrict a party to those gains

reasonably to be expected from the

contract’ when it was adopted. 379

U.S., at 315, 65 @3.Ce. 86-2072

United States Trust Co. v. New Jersey,

supra, 431 U.S. at 31, 97 O.06. 65 4502

(footnote omitted).

The application to this case of the

concept of unforeseen circumstances

giving rise to unintended “windfalls”

(as in El Paso), on the basis of this

court's decision in Fitzpatrick, is

troublesome. The pension benefits

granted to female employees after

Fitzpatrick cannot be deemed

unforeseeable “windfalls," because

Judge Clarie's decision did not change

the terms of their entitlement to such

benefits. However, it is arguable’'

- A140 -

that this characterization is

applicable to the benefits which the

sstate was required to pay male

employees as a result of Fitzpatrick.

Thus, the defendants might have

attempted to justify the 1975 Act as a

“reasonable” attempt to “'‘'restrict

[male members of the plaintiff class]

to those gains reasonably to be

expected from the contract’ when it was

adopted,” United States Trust Co.,

Suerea, 431 U.S. at 31, 97 S.Ct. at

1522, quoting El Paso v. Simmons,

Supre, 279 U.S. at 515, 85 S.Ct. at

587, and to prevent male plaintiffs

from reaping “windfalls." However,

such a construction would require the

court to uphold the 1975 Act in its

effect on males in the plaintiff class

(including men who were also members of

the plaintiff class in Fitzpatrick v.

Bitzer) but invalidate it as it applies

to female plaintiffs. A holding that

the contract clause permits the

impairment of Connecticut's obligations

to men, but not women, in the plaintiff

class would, of course, permit the

state to treat male plaintiffs in the

discriminatory manner which Judge

Clarie found unlawfui under Title VII.

Such disparate treatment of men and

women, explicitly forbidden by this

court's enforcement of Title VII in

Fitzpatrick, could not possibly be

regarded as “reasonable in light of the

Surrounding circumstances.”

Moreover, factors other than

"unforeseen circumstances” which have

been deemed relevant to the

"reasonableness" inquiry militate

against a finding that the 1975 Act was

reasonable as applied to the

plaintiffs. The effect of the 1975 Act

- Al42 -

on the plaintiffs would not be “simply

a temporary alteration of the

contractual relationships"™ in question,

Allied Structural Steel Co. v.

Spannaus, supra, 438 U.S. at 250, 98

S.Ct. at 2726. Rather, it would work

"a severe, permanent, and immediate

change in those

relationships--irrevocably and

retroactively." Id. Nor does the

scope of the 1975 Act, as it applies to

persons in the state's employ as of its

effective date, appear reasonable. The

statute does not apply equally to all

who were then in state service;

instead, it singles out those who would

not reach the-age for normal retirement

within the next five years. The

defendants have offered no

justification or explanation for the

decision to “grandfather in" some state

employees, while leaving the plaintiffs

subject to the new eligibility

requirements for pension benefits. C

Ph

Allied Structural Steel Co. v.

Spannaus, supra, 438 U.S. at 250, 98

S.Ct. at 2725.

Accordingly, the court cannot

conclude that the 1975 Act, as applied

to the plaintiffs, was a reasonable

method of furthering the state's

interests.

V. CONCLUSION

On the basis of the admitted and

stipulated facts, the court finds that

Connecticut and the members of the

plaintiff class were parties to a valid

and binding contract. Immediately

prior to the time the 1975 Act became

law, this contract required the state

to permit both male and female members

- Al44 -

of that class to retire on the terms of

the State Employees Retirement Act

which, before this court's decision in

Fitzpatrick, had applied only to female

employees. The court finds that the

1975 Act severely impairs the

obligations of this contract. Indeed,

although they have claimed that the

plaintiffs have no contractual rights,

the defendants have conceded that if

any such rights existed, the 1975 Act

impaired the state's contractual

obligations to the plaintiffs. That

impairment cannot be justified, under

the tests set forth by the Supreme

Court in United States Trust Co., as

either “necessary” to “serve an

important public purpose” or

“reasonable in light of the surrounding

Circumstances." The 1975 Act, as

applied to the plaintiffs, thus

unconstitutionally impaired the state's

contractual obligations.

This conclusion in no way affects

the constitutionality of the 1975 Act

insofar as it applies to employees who

entered state service after June 30,

1975. Nor does it prevent the members

of the legislature, as the duly elected

representatives of the people of

Connecticut, from enacting in the

future any legislation on the subject

of state employees’ pensions which

comports with their considered judgment

and wisdom on matters of public policy

and does not interfere with rights

protected by the Constitution or laws

»9€ the United States. In his opinion

in Fitzpatrick, Judge Clarie expressly

stated:

"Nothing herein shal

to interfere with t

Legislature performing its

constitutional function of freely

determining public policy, as it

pertains to deciding upon a uniform

retirement age for all men and

women employees of the State of

Connecticut in the future,

provid[ing] the same is carried out

without discrimination as to age or

benefits on the basis of sex."

Fitzpatrick v. Bitzer, supra, 390

F.Supp. at 290 (emphasis added). To

those words this court today only adds

the proviso, which inheres in our

constitutional system, that such

legislation as the state may enact on

this subject may not transgress the

limitations on state power, such as the

-ontract clause, which are embodied in

the United States Constitution

¢ 1intiff - t r cor >u airy

inted , permanent

t : e, requiring the

id ter the State

ement Act in a manner

tne pla Leeed &

contractual rights. The parties shall

settle within ten days an order

consistent with this memorandum of

decision, ensuring that the State

Employees Retirement Act is

administered in a way which protects

the contractual rights of every member

of the plaintiff class, and curing each

of the various types of injury which

the 1975 Act works upon their

constitutionally protected

expectations. The order shall further

provide for notice of this decision to

be sent to all members of the plaintiff

class and shall include a proposed form

of notice to the class.

It is so ordered.

- Al4d8 -

FOOTNOTES

390 F.Supp. 278 (D.Conn. 1974),

aff'd in part and rev'd in part on

grounds not relevant here, 519

F.2d 559 (2d Cir. 1975), aff'd in

not relevant here, 427 U.S. 445,

96 S.Ct. 2666, 49 L.Ed.2d 614

(1976).

42 U.S.C. Section 2000e et seq.

The appeal in Fitzpatrick (see n.l

Supra) was taken by the plaintiffs

and involved only the question

whether the Eleventh Amendment to

the United States Constitution

barred recovery by them of

monetary damages and attorney's

fees. The Supreme Court

ultimately held that Connecticut's

immunity under the Eleventh

Amendment was no obstacle to

either form of relief. There was

no appeal from Judge Clarie's

holding in Fitzpatrick that the

Connecticut statute violated the

rights of male employees under the

Title VII, or from the injunction

which he issued against the state

officials named as defendants in

Fitzpatrick. See Fitzpatrick v.

Bitzer, supra, 427 U.S. at 450n.7,

96 &.Ct. at 2666 n.7.

Stipulation Concerning Facts,

Filed March 26, 1980 §2.

u.m. Consett. eft 1, 636, <i. 1.

Brief in Opposition to Plaintiffs'

Motion for Summary Judgment, P. 4.

quoting Beford v. White, 106 Colo,

439, 444, 106 P.2d 469, 472

(1940). The quoted language has

long since been repudiated by the

Supreme Court of Colorado. See

Pension & Relief Board v. Bills,

148 Colo. 383, 388-89, 366 P.2d

581, 583-84 (1961); note 33, infra.

See p. 529, infra.

The class members were duly

notified of the pendency of this

action and of their rights with

respect to the litigation by means

of notices distributed with

payroll checks to state employees

on April 20, 1979. Affidavit of

Sidney D. Giber, Assistant

Attorney General of the State of

Connecticut, filed October 29,

1979.

Under the law in force immediately

prior to the effective date of the

1975 Act, the normal retirement

ages were 50 for employees with 25

years of continuous state service

and 55 for employees with at least

10, but less than 25, years of

continuous state service. The

1975 Act raised the normal

retirement ages to 55 and 60,

respectively, Conn.Gen.Stat.

§§5-162(c), 5-162(d), except for

employees who would reach, prior

to June 30, 1980, the normal

retirement ages previously in

force. Conn.Gen.Stat. §5-163a.

The Treasurer's duties include the

receipt and disbursement of public

monies, Conn. Const. art. 4, §22,

including monies in the State

Employees Retirement Fund,

Conn.Gen.Stat. §5-156.

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”

4

The Comptroller is responsible for

the adjustment and settlement of

public accounts, Conn. Const. art.

4, §24, including accounts for the

State’s pension systems, see

Conn.Gen.Stat.§§5-156(b), 5-159.

Excepted are elected officials and

their appointees (who may

nonetheless choose to join the

System), Conn.Gen.Stat.§5-160(b),

judges (who may, in the special

circumstances enumerated in

Conn.Gen.Stat.§5-166a, choose to

join the system, rather than a

special retirement system for the

judiciary),

Conn.Gen.Stat.§5-160(c), and

teachers in state service,

Conn.Gen.Stat.§5-160(g). The

latter must join either the State

Employees Retirement System or a

separate retirement system for

teachers. Id.;

Conn.Gen.Stat.§5-158f.

Memorandum from JoAnn S. Mogensen,

Chief of the Retirement Division

of the Office of the Comptroller,

State of Connecticut, to Sidney D.

Giber, Assistant Attorney General

of the State of Connecticut, March

10, 1980, p. 1 (hereafter referred

to as the "“Mogensen Memorandum"),

annexed as an exhibit to the

Stipulation Concerning Facts,

filed March 26, 1980.

Mogensen Memorandum, p. 2. If the

accrued interest were not credited

to employees’ contributions, the

range would be from 6.9% to 12.8%

of benefits. Id.

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The absence of a genuine issue of

material fact is, of course, a

prerequisite to the availability

of summary judgment under Rule 56,

Fed.R.Civ.P. Although the parties

admitted and stipulated to a

fairly complicated set of facts,

the court would have been greatly

assisted had the parties prepared

and filed the statements required

by Rule 9(d) of the Local Rules

Governing Civil Procedure in this

District. That rule requires the

party moving for summary judgment

to include in his moving papers “a

separate, short and concise

statement of the material facts as

to which the moving party contends

there is no genuine issue to be

tried," and requires the opposing

party to file “a separate, short

and concise statement of the

material facts as to which it is

contended that there exists a

genuine issue to be tried." *

Because Rule 9(d) statements

facilitate the determination

whether summary judgment is an

appropriate remedy, compliance

with the rule is mandatory.

This provision also permitted

female employees with at least

five but less than ten years of

state service to retire with

pension benefits at age 65; no

male employee could retire with

less than ten years of state

service under this provision,

regardless of his age. See former

Conn.Gen.Stat.§5-162(d)(1)(A).

- A152 -

The 1972 amendment, Pub.L. No.

92-261, §2, brought, state

employees within the protection of

Title VII's prohibition of sex

discrimination in employment.

Fitzpatrick v. Bitzer, supra, 427

U.8. @t 4469 .2, 96 3.Ct. at. 2668

n.2. In view of his decision

under the federal statute, it was

unnecessary for Judge Clarie to

consider the plaintiffs' claim

that the Connecticut statute also

violated the equal protection

Clause of the Fourteenth Amendment

to United States Constitution.

Fitzpatrick v. Bitzer, supra, 390

r. Supp. at 290; id. 427 U.S. at

449 8.3, 38 3.48 .. St 2668 4.3.

See n.3, supra. The Supreme

Court's decision in Fitzpatrick

held that the retired members of

the plaintiff class were entitled

to “an award of retroactive

retirement benefits as

compensation for losses caused by

the State's discrimination,"

Fitzpatrick v. Bitzer, supra, 427

U.S. at 449-56, 96 S.Ct. at 2667,

as well as reasonable attorney's

fees, id. at 456-57, 96 S.Ct. at

2671. As a result of this

holding, the retired plaintiffs in

Fitzpatrick received compensatory

payments for the period commencing

March 24, 1972 (the effective date

of the 1972 amendments to Title

VII), which left them with

benefits identical to what they

would have received had they been

permitted to retire at the ages

formerly applicable only to

women. Mogensen Memorandum, p. l.

- Al53 -

Stipulation Concerning Facts,

filed March 26, 1980, ¥f2.

The facts recounted in this

section of the court's opinion

were established by the

dGefendants' failure to respond to

the plaintiffs’ Request for

Admissions, filed July 13, 1979.

Under Rule 36(a), Fed.R.Civ.P.,

the failure of a party served with

such a request to respond within

thirty days of service constitutes

an admission of the matters

requested. According to Rule

36(b), Fed.R.Civ.P., “[La]ny matter

admitted under this rule is

conclusively established unless

the court on motion permits

withdrawal or amendment of the

admission." Counsel for the

defendants has not moved to

withdraw or amend the admissions.

Nor have the defendants attempted

to file a response, however

untimely, to the plaintiffs'

Request for Admissions.

Accordingly, the court deems these

facts admitted and conclusively

established for the purposes of

this litigation.

See Answer 4, admitting relevant

portions of Amended Complaint ¥14.

Conn.Gen.Stat.§5-163a.

Section 5-163(c), which is headed

"(eJarly retirement," provides

that an employee, not covered by

Conn.Gen.Stat.§5-163a, “whose

state service is terminated

because of economy, lack of work

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Or abolition of his position, or

who, being an army or air national

guard technician ‘in the military

department, is dismissed by reason

of separation from the national

guard because of age, after he has

completed twenty-five years of

State service, but before he has

reached his fifty-fifth birthday,

Shall be entitled to a retirement

income."

Section 5-166 applies to employees

who leave state service before

they become eligible for

retirement, “but after completing

at least ten years of state

service, of which at least five

years shall have immediately

preceded the date of .. . leaving

State service," unless they are

covered by Conn.Gen.Stat.§5-163a.

Conn.Gen.Stat.§5-166(a).

The facts relating to the named

plaintiffs are drawn from 4415-21

of the plaintiffs’ Amended

Complaint, which are admitted in

%3 of the defendants' Answer.

The plaintiffs also allege that

the 1975 Act violates their rights

under the due process and equal

protection clauses of the

Fourteenth Amendment. However,

these points were neither

emphasized in the parties' briefs

nor stressed at oral arqument.

See Transcript of Oral Argument on

Plaintiffs’ Motion for Summary

Judgment, Feb. 7, 1980, p. 4. In

view of the court's conclusion

that the plaintiffs' rights under

the contract clause were violated

by the 1975 Act, it is unnecessary

to consider the merits of the

Fourteenth Amendment claims which

the plaintiffs have not pressed.

In El Paso, the Court upheld a

Texas statute which limited the

reinstatement rights of those who

had purchased land from the state

and had defaulted on their

interest payments by requiring

that such persons make application

for reinstatement within five

years of default; prior law

included no such statute of

limitations. Rejecting the

argument that the contract clause

forbade such legislation, the

Court held that “it is not every

modification of a contractual

promise that impairs the

obligation of contract under

CGGUCSE LON -. a. ss a”. Bk. Pee. ¥.

Simmons, supra, 379 U.S. at

906-07, 85 S.Ct. at 582.

In Blaisdell, the Supreme Court

upheld against a contract clause

Challenge a’temporary mortgage

moratorium enacted by the

Minnesota legislature in the

depths of the Great Depression.

The Court gave effect to the

“principle of harmonizing the

constitutional prohibition with

the necessary residuum of state

power,” 290 U.S. at 435, $4 §.Ct.

at 239, to deal with a grave

economic crisis by holding that,

in the circumstances presented,

the limited impairment of

contractual obligations caused by

the mortgage moratorium was

- Al56 -

constitutionally permissible.

ash In another context, the Supreme

Court of the United States

recently made a similar

observation:

"A pension plan assures

employees that by devoting a

large portion of their working

years to a single employer,

they will achieve some

financial security in their

years of retirement. By

rewarding lengthy service, a

plan may reduce employee

turnover and training costs

and help an employer secure

the benefits of a stable work

force."

Alabama Power Co. v. Davis, 431

U.S. 381i, 594, S97 St.ct. 2002,

2009, 52 L. Ed.2d 595 (1977)

(holding that the Military

Selective Service Act of 1967

required an employer to grant a

veteran returning from military

service credit toward his pension

for time spent in the military).

As the court noted in Borden v.

Skinner Chuck Co., supra, 21 Conn.

Supp. at i190, 150 A.2d at 610,

this principle was applied in

Connecticut as early as Tilbert v.

Eagle Lock Co., 116 Conn. 357,

361-62, 165 A. 205, 207 (1933), a

case involving employee death

benefits. In Tilbert, a widow

brought an action to recover

benefits under a “certificate of

benefit" issued to her late

husband by his employer. The

Supreme Court of Errors held that

the plaintiff stated a good cause

of action under Connecticut's law

of contracts, even though the

employer, in a contemporaneous

document explaining its offer of

the “certificate of benefit,”

expressly stated that “(t)]his

benefit plan being voluntary on

the part of Eagle Lock Co., it is

understood that it constituted no

contract with any Employee or any

beneficiary, and confers no legal

rights on him or them,” 116 Conn.

at 360, 165 A. at 207. The court

found that there was consideration

for the supposedly gratuitous

offer of a death benefit,

explaining:

“(A] prime purpose of the

granting of the benefits was

to secure the good will,

loyalty, and efficiency of the

defendant's employees and

especially, through the

progressive premium placed on

long-continued service, to

minimize labor turn-over and

obtain the advantages of

experienced operatives. The

attainment of these purposes

constituted a benefit or

advantage received by the

defendant, who must be assumed

to have requested it because

it desired it and regarded it

as beneficial to its

interests. Tilbert remained

in the employ of the defendant

more than seven years after

receiving the certificate. By

so doing he manifested his

acceptance of the promise,

forbore his right to terminate

his employment and engage

elsewhere, and conterred he

benefit which the defen lant

sougnt. .. -« The essential f a

consideration are satisfiec. .

116 Conn. at 361-62, 165 A. at

(citations omitted).

Section 90 of the Sec nd

Rest yztement DI Vi le P Lr pe rtine t

part:

.

Z

Inducing Actio! [ rebea é

A promise which the pl!

should reasonably expect ¢

induce oe 2 n r f Hhearar}r ‘

and whicn 1O€ naouce ]

—wction I rpeatral

b ndi - rs ’ ‘ P .

a» + » ti » & s .

ivoided nly by the

ent rce eT > f - Mis

seg., somehow negat

existence f any tract

state ene y 5 pr t t

. 1975, ts effe > ; >

Brief in O; sit ee E t

Motion for Su ary igmer

l-3 While the ect t

bargaining law ¢f le f t

f contract between tne tate

its employees, it does . a [

t act retroact ely and ¢t

1f the state'‘s ntracts wit!

employees, reviously made, int

something less thar ntracts

The court ther )

connection between the collective

bargaining legislation of 19

the issue of whether previous

legislation gave rise to

contractual obligations.

See Brief in Opposition to

Plaintiffs‘ Motion for Summary

Judgment, pp. 3-5. Cf. Pennie v

Reis, 132 U.S. 464, 471, 10 S.Ct.

149, 151, 33 L.Ed. 426 (1889)

(interest of police officer in

employee benefit fund was “a mere

expectancy, created by the law,

and [is] liable to be revoked or

destroyed by the same authority”

until the happening of the

conditions established by law).

Among the cases upon which the

defendants rely for the

proposition that public employees’

pensions are mere gratuities,

conferring no contractual rights,

is Board of Trustees v. People ex

rel. Behrman, 119 Colo. 301, 203

P.2d. 490, (1949). Behrman, was,

however, expressly overruled on

this point in Police Pension &

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=

In Yeazell v. Copins, 98 Ariz.

169, 242, 402-7220 238i. 343

(1965), the court held that

Arizona's statutory provisions

for public employees’ pensions

were contractual in nature.

The court rejected the

argument that the pension

benefits were gratuities, in

part because the Arizona

legislature, like

Connecticut's, was

constitutionally /forbidden

from conferring gratuities on

state employees.

As long ago as 1956, a

commentator who surveyed this

field of law observed that

"the tendency today is to

consider a pension plan a

contract," and to reject “the

gratuity theory of pensions."

Note, Contractual Aspects of

Pension Plan Modification, 56

Colum. L.R@v. 251, 235 €21996) .

In addition to the states

whose courts have rejected the

“gratuity” concept, several

states, of which New York was

the first, have adopted

constitutional provisions

declaring public employees'

pensions benefits to be

contractual in nature. See

a.%. Const. act. ¥, S7,

("membership in any pension or

retirement system of the state

or a Civil division thereof

shall be a contractual

relationship, the benefits of

which shall not be diminished

Or impaired"); Alaska Const.

art XII, §7; Hawaii Const.

act... Bats Sai iis Ceoaee. Ort. 13,

SS; Bien. Conét. ast. 1%; 324. $j$in

Massachusetts, a statute

establishes as contractual the

relationship between the state and

members of its public employees'

retirement system. Mass. Gen.L.

cn. 32,. S25¢3)... Tae tact that, in

other jurisdictions, prior case

law based on the “gratuity" theory

has been overruled by

constitutional amendments or

statutes is no impediment to this

court's determination that

Connecticut's common law of

contracts requires a rejection of

the "gratuity" theory. The

inherent but unexercised power of

a legislature or constitutional

convention to discard an outmoded

judge-made doctrine is no obstacle

to a judicial decision that

overrules such a doctrine, see

generally B. Cardozo, The Nature

of the Judicial Process 127-28,

134-38, 149-58 (1921), much less a

bar to a decision--such as this

one--which restates and

interprets, rather than revises,

the state's common law.

See pp. 547-548, infra.

In view of the clear holding in

Fitzpatrick that the provisions of

state law applicable to men

violated Title VII, those

provisions must, under the

Supremacy clause of the United

States Constitution, yield to the

requirements of the federal

statute. See Stryker v. Register

Publishing Co., 423 F.Supp. 476,

479 (D. Conn. 1976) (Newman, J.).

- Al63 -

See pp. 532-533 & N. 20, Supra.

At oral argument on the pending

motion, the court asked

defendants' counsel whether,

assuming arguendo the existence of

a contractual obligation, the 1975

Act impaired the state's

obligation to its employees.

Counsel responded:

"Yes, I think I would have to

concede that asking a

particular state employee to

work five years more would be

an impairment of the contract.”

Transcript of Oral Argument on

Plaintiffs‘ Motion for Summary

Judgment, Feb. 7, 1980, p. 37.

The dual standard of judicial

scrutiny employed by the Court was

suggested in Note, The

Constitutionality of the New York

Municipal Wage Freeze and Debt

Moratorium: Resurrection of the

Contract Clause, 125 U.Pa.L.Rev.

167, 184-91 (1976); see United

States Trust Co. v. New Jersey,

supra, 431 U.S. at 26 n.25, 97

S.ct. at 1519 n.25. Several

commentators have expressed the

view that this dual standard

breathes new life into the

contract clause, at least in cases

involving contracts to which

states or their subdivisions are

parties. See, e.g., Note, The

Contract Clause: Is There Life

After Death?, 30 Baylor L.Rev. 191

(1978); Comment, Constitutional

Law: Contract Clause Protection

of Municipal Bond Obligations, 29

U.Fla.L.Rev. 1000, 1010 (1977).

While, as a general proposition,

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this may be accurate, the point

should not be overstated. Even in

the immediate aftermath of Home

Building & Loan Association v.

Blaisdell, supra--the case which

is often considered to have

Signaled the demise of the

contract clause--the Supreme Court

voided state laws which

unreasonably and unnecessarily

impaired contractual obligations.

See, e.g., W.B. Worthen Co. v.

Kavanaugh, 295 U.S. 56, 60-63, 55

ns ey eee, 296-5598, 79 L.Ed.

1298 (1935); W.B. Worthen Co. v.

Thomas, 292 U.S. 426, 432-34, 54

Saues eaes oeeeo.9o, 76 L.Ed. 1344

(1934). See generally B. Wright,

The Contract Clause of the

Constitution 111-19 (1938).

Justice Blackmun's observation

that “({a] governmental entity can

always find a use for extra money,

especially when taxes do not have

co me geneecq, 431 U.S. at 26, 97

S.Ct. at 1519, is strikingly

reminiscent of the remarks of the

sponsor of the amended bill which

became the 1975 Act: "I'm sure

this House will be able to find a

place to use [the] three to five

million dollars [to be saved]

should this amendment pass."

General Assembly Proceedings

1975: House of Representatives

6346 (remarks of Rep. Wright).

The Supreme Court's own

straightforward explanation of the

need for closer scrutiny where the

state has impaired its own

contractual obligations is thus

Orne out by the record before the

court in this case. Clearly, the

- Al65 -

A

4

rationale for careful examination

of the legislature's action in a

case such as this has nothing to

do with the existence or

intimation of “legislative

venality or corruption," as one

commentator has suggested. See

The Supreme Court, 1976 Term, 91

Harv.L.Rev. 70, 89 (1977).

Because this court does not review

the merits or wisdom of the

state's decisions on matters of

public policy in determining the

constitutionality of the statute,

it cannot fairly be said that the

application of the United States

Trust Co. tests revives “the

heyday of economic due process

associated with Lochner v. New

Yock, i198 U.8. 39, tas Btu. 239,

49 L.Ed. 937] (1905), and similar

cases long since discarded,"

United States Trust Co. v. New

Jersey, supra, 431 U.S. at 60-61,

$7 &.Ct. at iS37 (Srennan, d.,

dissenting). Lochner and similar

decisions were based on the

premise, no longer tenable in

modern constitutional

jurisprudence, that the

Constitution forbids the enactment

of any legislation designed to

achieve certain goals. For

example, in Lochner, the Court

held that it was not within a

state's power to regulate the

hours a baker might be required to

work, on the ground that the due

process clause made this an

impermissible purpose of state

legislation. See generally L.

Tribe, American Constitutional Law

- Al66 -

§8-4 (1978). However, the

contract clause analysis

undertaken here does not prohibit

the state from exercising its

sovereignty to achieve any

particular goal. The inquiry

which the court undertakes is only

an examination of the necessity

and reasonableness of the means

chosen to achieve concededly

proper, and indeed important,

legislative ends. The court does

not in any way second-guess the

legality or desirability of the

purposes which the General

Assembly sought, as a matter of

public policy, to advance in

adopting the 1975 Act.

In fact, some of the provisions of

the 1975 Act have no effect on the

former policy of permitting

retirement with benefits at age

50. See, e.g.,

Conn.Gen.Stat.§5-162(d)(1)

(raising age from 55 to 60 for

certain employees). The

impairment of contractual

obligations which result from the

application of those provisions to

members of the plaintiff class is

wholly unrelated to the goal of

putting an end to retirements at

age 50. Such sections of the

statute can be upheld, if at all,

only on the theory that they were

necessary and reasonable means of

achieving the state’s goal of

Saving money.

Clearly, no provision of the

United States Constitution or of

federal law requires Connecticut

to allow its employees to retire

~« WI6T.<

with pension benefits at age 50

or, for that matter, any other

age. This court's decision in

Fitzpatrick v. Bitzer held only

that the state, having already

granted certain females in its

employ the right to retire with

benefits at age 50, was required

by Title VII to give similarly

Situated males the identical

right. Nothing in Fitzpatrick,

see 390 F.Supp. at 290, and indeed

nothing in this opinion, limits

the legislature's discretion to

change retirement age on a

prospective and non-discriminatory

basis in accordance with its

policy judgments. Because it was

Connecticut's own legislative

decision that permitted retirement

at age 50, and conferred

contractual rights to retire at

that age upon some employees, the

state cannot complain that it is

Onerous to be held to that

contract or its consequences. Any

resulting injury is self-inflicted.

In Flushing National Bank v.

Municipal Assistance Corp., 40

N.¥.20 73k, 320 Betumeee 2a, Soe

N.E.2d 848 (1976) (Breitel, C.J.),

the New York Court of Appeals held

that the debt moratorium statute

which was also the subject of the

Ropico litigation violated article

VIII, section 2 of the New York

Constitution, which prohibits any

city in the state from contracting

any indebtedness without pledging

its “full faith and credit" for

repaying the debt. Although the

lower courts in Flushing National

- Al68 -

Bank had held that the statute

violated neither the state

constitution nor the contract

clause of the United States

Constitution, the Court of

Appeals, New York's highest

tribunal, found it unnecessary to

reach the federal constitutional

question in light of its holding

under the New York Constitution.

Flushing National Bank v.

Municipal Assistance Corp., supra,

40 8.%.42G@ @¢t 739, 390 W.Y¥.S.2d at

26, 3090 8.8.46 &t 854.

the preamble to the New York State

Financial Emergency Act for the

City of New York, 1975 N.Y. Laws,

ch. 868, §1, enacted in September

1975 and challenged in

Subway-Surface Supervisors

Association, provides in part:

“It is hereby found and

declared that a financial

emergency and an emergency

period exists in the City of

New York. The city is unable

to obtain the funds needed by

the city to continue to

provide essential services to

its inhabitants or to meet its

obligations to the holders of

outstanding securities.

Unless such funds are obtained

the city will soon (i) fail to

pay salaries and wages to

employees and amounts owed

vendors and suppliers to the

city, (ii) fail to pay amounts

due to persons receiving

assistance from the city and

(iii) default on the interest

and principal payments due the

- Al69 -

holders of outstanding obligations

of the city.

If such failures and

defaults were to occur, the

effect on the city and its

inhabitants would be

devastating: (1) unpaid

employees might refuse to

work; (2) unpaid vendors and

suppliers might refuse to sell

their goods and render

services to the city; (3)

unpaid recipients of public

assistance would be unable to

provide themselves with the

basic necessities of life; and

(4) unpaid holders of city

Obligations would seek

judicial enforcement of their

legal rights as to city

revenues. These events would

effectively force the city to

stop operating as a viable

governmental entity and create

a clear and present danger to

the health, safety and welfare

of its inhabitants.

The difficulties of

finding solutions to such

events would be compounded by

the likelihood that the city,

as well as the municipal

assistance corporation for the

city of New York, would be

foreclosed from seeking funds

in the public markets. The

elimination of the public

markets as a source of funds

would leave the city with no

foreseeable way to refund its

outstanding short-term

indebtedness. Thus the city

- Al70O -

might be unable for an extended

period to cure default on its

outstanding obligations and that

event could almost permanently

destroy the fiber of the city.

x x x

This situation is a

disaster and creates a state

of emergency. To end this

disaster, to bring the

emergency under control and to

respond to the overriding

state concern described above,

the state must undertake an

extraordinary exercise of its

police and emergency powers

under the state constitution,

and exercise controls and

supervision over the financial

affairs of the city of New

York, but in a manner intended

to preserve the ability of

city officials to determine

programs and expenditure

priorities within available

financial resources."

x x .

(emphasis added).

In November 1975, the New York

Legislature, at another

extraordinary session, adopted the

legislation that was attacked in

Ropico, the New York State

Emergency Moratorium Act for the

City of New York. This statute

included a preamble, 1975 N.Y.

Laws, ch. 874, §1l, expressing a

legislative finding that the

city’s fiscal emergency had

seriously deteriorated since the

previous special legislative

session:

- Al7l -

“It is hereby found and declared

that the grave public emergency

found and declared to exist by the

legislature in adopting the New

York State Financial Emergency Act

for the City of New York has

dramatically worsened in the last

two months. Today, not only is

the City of New York threatened

with default on its outstanding

obligations, but financially sound

agencies of the state itself are

similarly threatened becatse of

public fears about the effects of

default by the city.”

New York State Financial Emergency

Act for the City of New York, 1975

N.Y. Laws, ch. 868, §1.

In the course of the brief debates

which preceded the adoption of the

1975 Act by the General Assembly,

several legislators alluded to New

York City’s fiscal crises, arguing

that unless Connecticut began to

exercise fiscal restraint in

administering its pension system,

it might subsequently find itself

in the dire straits into which New

York City had already fallen.

See, e.g., General Assembly

Proceedings 1975: House of

Representatives 6348 (remarks of

Rep. Dice); id. at 6351 (remarks

of Rep. Nevas). Such occasional

invocations of New York City’s

grave difficulties were apparently

designed to sound an alarm for the

future, rather than to describe

the financial condition of

Connecticut in 1975. Nothing in

the record of the General Assembly

- Al72 -

proceedings relating to the 1975

Act suggests that the financial

problems of this state were in any

sense comparable to the New York

City fiscal crisis, or that the

legislation enacted by the General

Assembly was part of a

comprehensive program to remedy or

prevent any such crisis in

Connecticut. It is noteworthy in

this regard that the 1975 Act was

not accompanied by legislative

findings of imminent financial

catastrophe, such as those

reproduced in note 47, supra. See

also Home Building & Loan

Association v. Blaisdell, 290 U.S.

398, 420-21, 421 n.3, 444-45, 54

S.C&. 231, 233 a.3, 242, 76 L.84.

413 (1934) (crediting, and relying

upon. express findings of

legislature concerning economic

emergency). Significant, too, is

the fact that the defendants have

not argued that the present

condition of Connecticut's

finances militates against a

judgment for the plaintiffs.

Indeed, the defendant state

officials have not called to the

court's attention any facts

concerning the impact on the

state's finances of a decision

upholding the plaintiffs’

challenge to the application of

the 1975 Act to them.

The “reasonableness” test may well

be, as one critic of United States

Trust Co. has written, “redundant”

in light of the apparently more

searching inquiry, also

contemplated by United States

- Al73 -

Trust Co., into the necessity of

the impairment of contractual

obligations. See The Supreme

Court, 1976 Term, 91 Harv.L.Rev.

70, 87 (1977); see also United

States Trust Co. v. New Jersey,

Supra, 431 U.S. at 55 n.17, 97

S.Ct. at 1534 n.17 (Brennan, J.,

dissenting). The court, however,

declines to ignore this test,

recently set forth by the Supreme

Court, even though its

determination that the 1975 Act

does not meet the stringent

“necessity” test may technically

relieve the court of the need to

examine the reasonableness of the

legislation.

Neither in their briefs nor at the

hearing on this motion did the

defendants offer any arguments in

support of the necessity or

reasonableness of the 1975 Act, as

applied to the plaintiffs.

Indeed, the only question

presented by the instant motion

which defendants’ counsel

addressed was the preliminary

inquiry into whether a contract

existed.

9000H

- Al74 -

Karen PINEMAN et al.,

Plaintiffs-Appellees,

V .

William G. OECHSLIN et al.,

Defendants-Appellants

No. 376, Docket 80-7562.

United States Court of Appeals,

Second Circuit.

Argued Nov. 17, 1980.

Decided March 16, 1981.

Plaintiffs brought suit challenging

constitutionality of state of

Connecticut's revision of its State

Employees Retirement Act to conform to

requirements of federal civil rights

law. The United States District Court

for the District of Connecticut, Jose A.

Cabranes, J., 494 F. Supp. 525, declared

revision of Act impaired state's

contractual obligations in violation of

contract clause of the United States

Constitution, and defendants appealed.

Al75 -

The Court of Appeals, Newman, Circuit

Judge, held that abstention was

appropriate in suit so that state

courts could be given opportunity to

adjudicate contract law aspect of

plaintiffs’ claim, even though federal

courts, thereafter resolving the

constitutional issue, would not be

obliged to give state court ruling the

conclusive deference that abstention

normally entails.

Vacated and remanded.

Peter W. Gillies, Deputy Atty,

Gen., Hartford, Conn. (Carl R. Ajello,

Atty. Gen., Bernard F. McGovern, Jr.,

Asst. Atty. Gen., and J. Sarah Posner,

Asst. Atty. Gen., Hartford, Conn., on

brief), for defendants-appellants.

Paul W. Orth, Hartford, Conn.

(Austin Carey, Jr., Harry Franklin,

Robert Krzys, Eleanor K. May and

Hoppin, Carey & Powell, Hartford,

» £16.

Conn., on brief), for

plaintiffs-—appellees.

Robert F. McWeeny and Fleischman,

Sherbacow, McWeeny & Cohn, Hartford,

Conn., submitted a brief for

Connecticut State Federation of

Teachers, AFT, AFL-CIO, as amicus

curiae.

Before LUMBARD, NEWMAN, and KEARSE,

Circuit Judges.

NEWMAN, Circuit Judge:

This appeal concerns the

constitutionality of the State of

Connecticut's revision of its State

Employees Retirement Act, Conn. Gen.

Stat. §5-152 et seq., to conform to the

requirements of the federal civil

rights laws. The District Court for

the District of Connecticut (Jose A.

Cabranes, Judge) struck down the

revisions for impairing contractual

obligations in violation of the

«< RETT +

Contract Clause of the United States

Constitution.?+ Pineman v. Oechslin,

494 F. Supp. 525 (D.Conn.1980). We

vacate and remand to allow the state

courts an initial opportunity to decide

the important question of state law at

issue in this lawsuit.

Until 1974 a Connecticut state

employee's eligibility for pension

benefits varied according to gender;

women with 25 years of service were

eligible for retirement with full

benefits at age 50, while men with the

same length of service became eligible

at age 55, Conn.Gen.Stat. §5-162(c) (1)

(amended 1975); for employees with 10

to 25 years of service, the eligibility

age for retirement with full benefits

was 55 for women and 60 for men,

Conn.Gen.Stat. §5-162(d)(1) (amended

1975). Similar five-year eligibility

differences, based on gender, existed

tk oe

for reduced pension benefits, which

were available under certain

circumstances, Conn.Gen.Stat.

§§5-163(c) and 5-166(a) (amended 1975),

and the tables by which benefits were

calculated ensured that a female

retiree received benefits equal to

those received by a male retiree five

years her senior, Conn.Gen.Stat.

§5-162(d)(3) (amended 1975).

In 1974 these five-year retirement

age differentials were found to

discriminate against men in violation

of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e et seq. (1976).

Fitzpatrick v. Bitzer, 390 F. Supp. 278

(D.Conn.1974). In order to remedy that

discrimination, the State legislature

amended the retirement statute in 1975

tc equalize the terms and benefits of

the retirement system by raising the

retirement eligibility ages for female

= Ri?9- —

employees so that they equaled the ages

required for male employees. P.A. No.

75-531 (1975) ("the 1975 Act"). The

1975 Act established one retirement

eligibility age for each category of

eligible employee regardless of

gender.”

Plaintiffs-appellees, who represent

various classes of state employees,

challenged the constitutionality of the

1975 Act under the Contract Clause for

impairing the State's alleged

contractual obligation to provide them

with benefits at the retirement ages

previously established. ° By raising

the ages, the State effectively reduced

benefits for female employees. This

reduction occurs either because the

length of time benefits are received is

shorter or the annual amount received

is less. Ail women who wish to retire

at the earliest possible age, set

- Al8s0 -

according to their length of service,

will find that this minimum eligibility

age is now increased by five years.

Most women who retire at the same age

at which they would have retired under

the prior system will find that their

annual benefit level is reduced.“

The District Court, on appellees'

motion for summary judgment, held that

the 1975 Act, as applied to appellees,

violated the Contract Clause. The

Court also noted that the Act's

prospective application to employees

who were not employed by the State on

the Act's effective date (June 30,

1975) was not challenged and, in any

event, would be constitutional.

In a thorough and carefully

considered opinion, the District Court

pursued traditional Contract Clause

analysis, first considering whether a

contractual obligation existed and, if

- Al18l -

so, whether the new statute was an

unconstitutional impairment of that

obligation. Allied Structural Steel Co

v. Spannaus, 438 U.S. 234, 98 S.Ct.

2716, 57 L.Ed.2d 727 (1978); United

States Trust Co. v. New Jersey, 431

U.S. 1, 97 §.Ct. 1503, 32 ameeeo oe

(1977); see Note, A Process-Oriented

Approach to the Contract Clause, 89

Yale L.J. 1623 (1980). Although no

Connecticut court had ever ruled on the

issue of when, or to what extent, the

pension rights of the state employees

vest, the District Court found, from a

combination of factors, that the

Retirement Act, as it existed prior to

the 1975 revision, created a

contractual obligation. The Court

emphasized state court decisions

concerning the contractual nature of

private-employer pension plans, Bird v.

Connecticut Power Co., 144 Conn. 456,

- Al82 -

133 A.2d 894 (1959); Borden v. Skinner

Chuck Co., 21 Conn.Sup. 184, 150 A.2d

607 (Super.Ct. 1958), and Wyper v.

Providence Washington Insurance Co.,

533 F.2d 57 (2d Cir. 1976) (construing

Connecticut law); the statutory

requirement that state employees

participate in, and contribute to, one

of the state retirement plans,

Conn.Gen.Stat. §§5-157, 5-160 and

5-161 (1975); and the reliance

interest of female employees who had

entered state service before the

enactment of the 1975 Act, expecting to

retire at the lower ages and receive

the established benefit levels. Having

found an enforceable state law

obligation, the District Court then

concluded that the 1975 revision

violated the Contract Clause because it

was neither necessary nor reasonable.

- A183 -

{1] In reviewing the District

Court's conclusions, > we focus our

attention on the initial question

whether the pre-1975 Retirement Act

created a contractual obligation

obliging Connecticut to maintain the

pre-1975 retirement ages for female

state employees who had not yet begun

receiving retirement benefits when the

Act was revised. This is an issue of

both state and federal law. Initially

it is a question of state law, for only

those arrangements enforceable as

contractual obligations under state law

are protected by the Contract Clause

against impairment. At the same time,

there is a federal law component to the

inquiry. Federal courts must have the

ultimate authority to determine, as a

matter of constitutional law, whether a

particular arrangement, of the sort

normally enforceable as a contract

under state law, is a contract

protected by the Contract Clause;

otherwise, states could always evade

the restraint of the Clause by

determining, through legislation or

adjudication, that an arrangement

previously regarded as a contract was

no longer enforceable. For this reason

the Supreme Court has frequently

instructed that federal courts must

independently determine the existence

of a contract and the nature and extent

of its obligations in order to decide

whether it enjoys the protection of the

Contract Clause. E.g., Irving Trust

Co, v. Day, 314 U.S. 566, 561, 62 S.Ct.

398, 401, 86 L.Ed. 452 (1942). This

federal law aspect of a Contract Clause

case is often the dominant inquiry,

because, at least in modern cases, the

state law status of a contract is

rarely in dispute. See Allied

- Alg5s -

Structural Steel Co. v. Spannaus,

supra; United States Trust Co. v. New

Jersey, supra; Veix v. Sixth Ward

Building & Loan Association, 310 U.S.

32, 60 S.Ct. 792, 84 L.Ed 1061 (1940);

Blaisdell, 290 U.S. 398, 54 S.Ct. 231,

78 L.Ed 413 (1934). In this case,

however, there is considerable

uncertainty as to the state law nature

of contingent pension benefits for

public employees.

No Connecticut court has yet ruled

on the precise question whether state

employees have vested pension rights

prior to becoming eligible to receive

benefits. The states that have

considered the question have adopted a

variety of approaches. Some states

hold that there are no rights under a

pension plan until the state employee

satisfies all the eligibility

requirements, including age and years

of service, for receiving benefits.

See, e.g., Etherton v. Wyatt, 155

Ind.App. 440, 293 N.E. 2d 43

(Ct.App.1973); McFeely v. Pension

Comm'n 8 N.J. Super., 575, 73 A.2d 757

(Law Div.1950); Creps v. Board of

Firemen’'s Relief & Retirement Fund

Trustees, 456, S.W. 2nd 434

(Tex.Civ.App.1970). Others hold that

pension rights vest unconditionally

upon employment. See, e.g., Yeazell v.

Copins, 98 Ariz., 109, 402 P.2d 541

(1965); N.Y. Const. art. V, §7. Still

others apply a liimited vesting concept,

holding that pension right vest upon

employment subject to “reasonable”

modification by the public employer.

See, e.g., Stork v. State, 62 Cal.App.3

465, 133 Cal. Rptr. 207 (1976); Police

Pension Relief Bd. v. Bills, 148 Colo.

383, 366 P.2d 581 (1961); City of

- Al87 -

>

Frederick v. Quinn, 35 Md.App. 626, 371

A.2d 724 (Ct.Spec.App.1977). And some

determine vesting rights according to

the nature of the employee's

contributions: voluntary plans vest

upon employment, but mandatory plans do

not vest. See, e.g., State ex rel.

Q'Donald v. City of Jacksonville Beach,

142 So.2d 349 (Fla.Dist.Ct.App.1962),

aff'd, 151 So.2d 430 (1963). Cf. United

States Railroad Retirement Bd. v.

Fritz,—vU.S.—, 101 S.Ct 453, 66

L.Ed.2d 368 (1980) (railroad retirement

benefits, established by federal law,

are not contractual); Flemming v.

Nestor, 363 U.S. 603, 610-11, 80 S.Ct.

1367, 1372, 4 L.Ed.2d 1435 (1960)

(social security benefits are not

contractual; Congress's reservation of

right to alter, amend, or repeal the

system simply makes express what is

implicit in the institutional needs of

the program).

- Al88 -

{2] In the absence of any

authoritative ruling by the courts of

Connecticut on the vesting of state

employee pension rights, both sides in

_\this case have relied on a small number

of Connecticut decisions on somewhat

related questions of pension law. Bird

v. Connecticut Power Co., supra; Borden

v. Skinner Chuck Co., supra; Fraser v.

City of Norwich, 137 Conn. 43, 75 A.2d

60 (1950); State ex rel. Herbert v.

Ryan, 16 Conn.Sup. 319

(Super.Ct.1949). The District Court,

analogizing from a decision in the

field of private pensions, Bird v.

Connecticut Power Co., supra, predicted

that Connecticut courts would recognize

contractual rights to public pensions

arising immediately upon entry into

state employment. We are not prepared

either to accept or to reject that

prediction. In our view abstention is

- Al89 -

appropriate to afford the state courts

an opportunity to adjudicate the

contract law aspect of appellees'

claim, even though the federal courts,

thereafter resolving the constitutional

issue, will not be obliged to give the

state court ruling the conclusive

deference that abstention normally

entails. See Atlantic Coast Line

Railroad. Co. v, Priliins, 332 U.S.

168, i70, 67 &.C. 131564, 1565, 91 L.Ed.

1977 (1947); Irving Trust Co. v. Day,

supra, 314 U.S. at 561, 62 S.Ct st 401;

Higginbotham v. City of Baton Rouge,

306 U.S. 535, 5336-39, 59 &.Ct 7OS, 706,

83 L.Ed. 968 (1939).

Despite the lack of the usual

conclusiveness of a state court

determination of state law, abstention

principles are fully applicable in this

case. The issues in this lawsuit

combine significant aspects of both the

- A190 -

Pullman® and Burford’ branches of

the abstention doctrine. The state

common law rule® governing the

vesting of public employee pension

rights is highly uncertain. The

subject matter, the fixing of

compensation benefits to state

employees, is of vital importance to

the State and its governmental

functioning. See National League of

Cities v. Usery, 426 U.S. 833, 96 S.Ct.

2465, 49 L.Ed.2d 245 (1976). State

autonomy and the relationship between

state and federal authority would be

impaired were the federal courts to set

state policy independently and follow

their own instincts as to state

contract law. Considerations of comity

that underlie our federal system of

government make abstention

appropriate. see Burford v. Sun Oil

C., 229 U.B. 315, 334, 334, GF S.CU.

- A191 -

1098, 1106, 1107, 87 L.Ed 1424 (1943);

Railroad Commission v. Pullman, 312

U.S. 496, 498, 501, 61 S.Ct 643, 645,

85 L.Ed. 971 (1941).

The District Court's judgment with

respect to the invalidity of the 1975

Act, as applied to persons employed

before June 30, 1975, is vacated and

remanded for further proceedings in

accordance with this opinion.” No

costs.

20731

- Al92 -

FOOTNOTES

1 The Clause provides: "No State

shall ... pass any ... Law impairing

the Obligation of Contracts ...." U.S.

Comee. Bee. £, SIC, cl. 1.

2 The 1975 Act adopted the

retirement ages formerly applicable

only to male employees, as the new,

uniform eligibility ages.

Conn.Gen.Stat. §§5-162(c), 5-162(d),

and 5-163(c) (1975). However, all

employees, both male and female, who

would reach the ages at which female

employees were eligible to retire under

the pre-1975 Act, within five years of

the effective date of the 1975 Act,

i.e., by June 30, 1980, were eligible

to retire at those lower ages.

Conn.Gen.Stat. §5-163a (1975).

3 Appellees also challenged the

1975 amendments to the State Employees

Retirement Act under the Due Process

and Equal Protection Clauses of the

Fourteenth Amendment. They alleged

that the amendments constituted a

taking of property-their contract

rights to pension benefits-without just

compensation, and an arbitrary and

irrational classification of

employees-one according to

birthdate-because employees who would

reach the former, lower retirement age

within five years of the enactment of

the amendments, by June 30, 1980, were

exempted from the higher retirement

eligibility ages established by the

amendments. Because the District Court

found that the 1975 amendments violated

the Contract Clause, it did not reach

the merits of these claims. Pineman v.

- A193 -

Oechslin, 494 F.Supp. 525, 536 n.26

(D.Conn.1980).

4 Benefits under the plan for

those retiring with less than 25 years

of service are dete

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