Judge Puts Off Decision On Whether Receiver’s CalPERS Benefits Are Unconstitional

Did CalPERS Make A Gift Of Public Funds?

On January 23, 2008, the federal court appointed J. Clark Kelso as a receiver for California’s prison health care system. In 2011, a taxpayer filed a petition for write of mandamus challenging Mr. Kelso’s membership in the California Public Employees’ Retirement System (CalPERS). According to the taxpayer, Mr. Kelso is not a state employee and his CalPERS benefits amount to an unconstitutional gift of public funds.

CalPERS initially demurred on the basis of standing but lost. See CalPERS Suffers Standing Setback In Spiking Suit. A hearing on the merits had been scheduled for this Friday. However, Judge Michael Kenny in an order entered last Friday has decided that he will only hear argument on whether the petition is barred by laches as well as various evidentiary issues. If Judge Kenny decides against the petitioner based on laches, we’ll never know whether Mr. Kelso was improperly classified as a state employee. In this regard, I’m reminded of Judge Kenny’s earlier observation in this case:

In these times of fiscal crisis, the public duty of pension administrators to act in compliance with the law is sharp, and the public need to provide a means of review and accountability when they allegedly fail to do so is weighty.

Quid CalPERS Locutum Est?

The Pope’s recent announcement of his resignation in Latin demonstrates the importance of knowing Cicero’s mother tongue. I was therefore dismayed to see the following in a CalPERS press release announcing its intention to divest from manufacturers of assault weapons that are illegal under California law: “CalPERS holdings represent a “de minimus” value of less than one one-hundredth of one percent of the Fund’s total assets.” For the reason why CalPERS is wrong and other common errors in legal writing, see The Latin Lawyer – How To Write Like Cicero!

Constitutional Conventions May Not Be Cabined

Professor Stephen Bainbridge recently noted my post concerning one California legislator’s attempt to have Congress call a constitutional convention “for the sole purpose of proposing an amendment to the United States Constitution that would limit corporate personhood for purposes of campaign finance and political speech and would further declare that money does not constitute speech and may be democratically limited . . . .” There’s no mystery concerning how this legislator feels about Citizens United v. Federal Election Comm’n, 130 S.Ct. 876 (2010). In this post, Professor Bainbridge points out that ”it’s not at all clear whether a convention called pursuant to Article V of the Constitution can be limited to a single issue.”

 

Topics:  CalPERS, Federal Court Receiverships, Public Funds, Unconstitutional Gifts

Published In: Administrative Agency Updates, Constitutional Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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