Not all plaintiffs are created equal

Readers of this column know that I am not a fan of the “compromise” hammered out behind closed doors by the trial justice in the pension case. Constitutional issues should be decided, not side-stepped. Judges should not be in a position to force the legislative and executive branches of government to be subservient to the judiciary. Most importantly, the “solution” doesn’t  really settle the issue.
One needs only to look at the first group of state workers and retirees who were briefed on the settlement on February 26. One teacher of 26 years said that she’d rather have her day in court than accept the proposed settlement. Upon examination of the components of the “deal” they all don’t apply to everyone and therein lays a major problem. Here’s why.
This action initiated by the plaintiffs in Rhode Island is in the nature of a class action. The United States Supreme Court has constricted the certification of a class settlement. Starting with the 2011 case Wal-Mart Stores, Inc. vs Dukes, the high court essentially denied class action certification in this sex discrimination lawsuit. The 5 conservative justices noted that the class of 1.5 million female employees of the store couldn’t be certified as a class because there was no common answer to the crucial question among them as to “Why was I disfavored and fired? The justices figured that they were not similarly situated when it came to that answer.
How much more so is this true in the pension lawsuit? A retiree is in a different legal posture than say somebody in the system who has 4 years as a public employee and who hasn’t vested yet. The retiree probably had a more protected interest even than those who have been vested but have not retired yet. How can a vote silence the rights of those who want no part of the “deal,” even if it passes?
In a true class action folks can opt out of the settlement. Here, you are presumed to “opt in” if you don’t return a vote which is highly unusual. In a true class action, however, the dissenters are free to initiate their own litigation. I can’t see how the plaintiffs here with differing interests can somehow compromise the various statuses of the union members, past and present.
There’s also another line of cases which might impact the settlement. The top court also ruled  that arbitration clauses cannot be peremptorily set aside. Now, virtually all union contracts require arbitration where there is a material issue involving the contract. In the case of retirees, their contract has already been performed by them. Query what can be changed for them.
The Justices in American Express vs Italian Colors Restaurant et al stated that if a contract requires arbitration the federal arbitration act cannot invalidate a contractual provision. The Restaurants were not allowed to sue and were ordered back to arbitration. Do present public workers have to arbitrate first?
Now, the present pension lawsuits are all hybrids. There may be an agreed-upon settlement which may not really bind everybody. The constitutional issue probably supersedes any arbitration requirement, but neither this suit nor the two before it settled that question — they merely ignore it.
I see this “settlement” as truly blurring the lines of distinction which should be recognized in jurisprudence, namely, that the plaintiffs are not all similarly situated regarding their rights.

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