As reports regarding errant ballots sent on the pension settlement to affected public employees begin to multiply, the entire situation becomes more ridiculous by the moment. There can be no confidence in the vote. Here’s why.
The fatal flaw is the assumption that a “non-return” of the ballot is a “yes” vote for the settlement. This defies the usual legal principal where a class action or quasi-class settlement is intended to affect a discrete group, all of which requires an “opt in” provision; an affirmative action to become the recipient of a proposed benefit achieved by the legal action. In that manner, the legal system can account for those who potentially want to engage in a private action rather than partake of the group settlement.
In this case the issue is of critical importance as news leaks out that the ballots have been sent to somebody who is dead. This is a new variation on the “cemetery votes” of yesteryear that plagued past state elections. It begs the question: how many other deceased individuals got ballots?
Considering the person voted “yes” gives new meaning to the definition of “afterlife.”
The news that everybody over age 80 gets a ballot, even though their status is unknown since they don’t have to pay dues anymore, should send shivers up the spine of the Judge, Sarah Taft Carter, who is overseeing this litigation. Elderly teachers may be too ill, suffering from dementia, etc. to vote. Using a legal fig leaf justification that they voted “yes” disembowels the rule of consent. Theoretically, for example, those with advanced Alzheimers do not have the capacity to vote. They may have a guardian whose address may not be the same as that retired teacher who is under guardianship. Or they may have moved away.
Also troubling is the fact that only retired teachers who paid into the legal fund for this litigation got ballots, while those who did not pay did not. On the one hand, that’s a reasonable position but on the other hand, there are multiple retirees whose rights may be affected even though they chose not to participate by not ponying up funds. Personally, I think that the exclusion of these folks guts the settlement. Each of them never get a ballot so the “yes” trigger” never functions, thereby leaving them the right to sue anew and revisit the constitutional issue again. In fact, each non-participant could sue ad seriatim, thereby never really settling the constitutional issue that everybody (except me) seems to want to dodge. Nothing breeds more uncertainty than these folks who are left out of the loop, since the statute of limitations for them to bring their own litigation is quite a long period. Limbo in Rhode Island will ensue for taxpayers.
The judge should be assiduous in studying the “ballot” issue presented here. She must demand transparency as to the whole process, but also think about the ramifications if she just goes along with this ballot blast without considering exactly whose rights are involved. Even if one person who could sue never does so the imprimatur for a process that is a joke undermines the court. Judge Carter should take a hard look at this process — as it’s a process which denudes the justice system.