Leon County Circuit Judge Jackie Fulford incorrectly interpreted the state Constitution when striking down the law requiring that state workers contribute to their taxpayer-funded pension, contend attorneys for Gov. Rick Scott.

Former Justice Raoul Cantero, representing the state, wrote in the 44-page brief for the Florida Supreme Court that legislative appropriations supersede collective bargaining or that the state plan shouldn’t be considered a taking -- as Fulford ruled on March 6 -- because individuals' benefits remain untouched.

Cantero also claims that Fulford, a Charlie Crist appointee, exceeded her authority by ordering all 600,000 active members of the Florida Retirement System receive the 3 percent that came from their paychecks directed to the pension plan.

The state in 2011 had sought to require all employees -- regardless of when hired -- to pay 3 percent of their pay into the Florida Retirement System.

State officials have estimated Fulford’s order could be a $2 billion combined hit on state, county and school district budgets that are tied with the state plan.
Instead, Cantero argues that the court’s jurisdiction should have been extended to only the plaintiffs in the case.

“The circuit court never conducted a hearing on the scope and form of potential remedies and had no basis to know whether the order’s meat-cleaver approach to a remedy would be workable and avoid significant and adverse consequences to the state and the FRS,” Cantero wrote.

“The order imposed a monetary remedy for hundreds of thousands of individuals not before the court, without allowing defendants and the Legislature to craft a solution that reduces the potential for financial chaos.”

The lawsuit was filed last summer against Scott and other state officials on behalf of 11 public employees who are members of the retirement system. Those suing include members of the Florida Education Association, AFL-CIO, America Federation of State, County and Municipal Employees, Fraternal Order of Police and Service Employees International Union.

The unions contend legislators in 2011 violated the state Constitution, which requires contract changes to be negotiated through collective bargaining.

The state filed its brief with the state Supreme Court on Monday.

The appeals court had shuffled the state’s appeal of Fulford's ruling directly to Florida's top court.

In the brief, Cantero also argued that the 2011 plan does not impair contractual rights, noting that since the 1930s, the court has held that active members of a mandatory retirement plan like the Florida Retirement System generally have no contract rights.

He added that a 1981 Florida Supreme Court ruling involving the Florida Sheriffs Association declared the Legislature has the right to alter future benefits to active members.

“In Florida Sheriffs, this court interpreted that section to offer active employees a vested, contractual right to “rights and benefits already earned,” Cantero wrote. “But it also recognized that the Legislature could “alter retirement benefits prospectively.”

In her ruling, Fulford stated that she was interpreting the law.

“The 2011 Legislature, when faced with a budget shortfall, turned to the employees of the state of Florida and ignored the contractual rights given to them by the Legislature in 1974,” Fulford wrote.

“Considering the entire record before it, this court finds that certain provisions of Senate Bill 2100 constitute an unconstitutional impairment of plaintiffs’ contract with the state of Florida, an unconstitutional taking of private property without full compensation, and an abridgement of the rights of public employees to collectively bargain over conditions of employment.

“To find otherwise would mean that a contract with our state government has no meaning,” she added.

The Florida Education Association, which filed the lawsuit with a number of public-employee unions, contends legislators violated the state Constitution, which requires contract changes be negotiated through collective bargaining.

The union didn’t argue against the state requiring employees hired after July 1, 2011, when the law went into effect, to pay into the Florida Retirement System.



Reach Jim Turner at jturner@sunshinestatenews.com or at (772) 215-9889.