A legal memo written by the law firm Meyers-Nave prior to putting Measure B on the San Jose ballot said the City of San Jose had “an argument” that would allow the pension measure to stand. That argument was fully rejected by Superior Court Judge Patricia Lucas.
San Jose has spent millions and will spend millions more trying to overturn what every first-year law student already knows; that the right of contract is constitutionally protected. There is no legal argument that can prevail that would allow any government, a majority of voters, any individual or even a deity to invalidate a legal contract.
Judge Patricia Lucas found pensioners had “vested rights” that cannot be changed, modified or eviscerated by a vote of the people. But Mayor Chuck Reed, a good lawyer, already knew that fact.He began a public statewide effort to overturn the contracts provision in the current state constitution, even before the Judge ruled on the City of San Jose’s “legal argument”.
The problem is the right of contract is also protected in the United States Constitution, though Meyers-Nave may argue it is not a “fundamental” right so it does not apply to the states. Good luck with that “argument”.
So there is no chance Reed’s statewide initiative, even if it could eliminate the state protection, would change anything. Though Meyers-Nave will give him a “legal argument” followed by a legal bill that will allow him to proceed in his folly.
What is so disconcerting about the whole issue is that it was nonsense from the beginning. Those who supported “pension reform” knew from the start it wouldn’t pass legal muster. Their political victory has cost the city millions, destroyed employee morale and created a toxic atmosphere in our body politic.
It wasn’t necessary. This city and especially those City Councilmembers running for Mayor are on the hook for this debacle. Pete Constant, Rose Herrera, Madison Nguyen, and Pierluigi Oliverio, can try to spin the outcome as people who were “just taking the legal advice given”. But Sam Liccardo, like Reed, is a lawyer. He has a legal education from Harvard and he did not check that education at the door when he was elected. He can’t spin it that he was simply taking “legal” advice–he knew better.
Creative lawyers are taught to come up with legal “arguments”. But the Meyers-Nave legal opinion did not state that their “argument” would prevail. Given the body of law on point on this particular subject the memo should have stated the City’s position was not legally sound.
Finally, Meyers-Nave opinion was self-serving and a conflict of interest. The firm benefitted financially from the opinion because they were hired to defend the city once the expected lawsuit was filed. They will be paid even more to appeal Judge Lucas decision if the Council doesn’t turn off their spigot of money.
Thus, it is time for a majority of the Council to stop the bleeding and cancel the Meyers-Nave contract. The City should not appeal a decision they have very little chance of winning and that would go against all current precedent. Finally, the Mayoral candidates have an interest in changing the paradigm and can help themselves by not throwing good money after bad, especially as the legal talent that is currently on the City Council knows better.
Sam Liccardo should make the motion, Ash Kalra (a lawyer who opposed Measure B and wisely warned his colleagues this would be the result) should second the motion. Together, these two lawyers can save the city millions in future legal fees on an issue that won’t be won in a court of law.
Only then can we begin to repair the real damage caused by this unwise, unnecessary and wholly absurd “legal argument”.
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