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Flanders: State Has Edge in Pension Case; Gag Orders Generally "Disfavored"

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Former state Supreme Court justice Robert G. Flanders Jr. thinks the state will have the advantage if the legal dispute over the 2011 overhaul of Rhode...

Former state Supreme Court justice Robert G. Flanders Jr. thinks the state will have the advantage if the legal dispute over the 2011 overhaul of Rhode Island's pension system winds up going to trial.

"I've always thought that the state had the better argument, because I frankly think that it's a stretch to conclude that a statute is tantamount to a contract," Flanders said Thursday, during a taping of Rhode Island Public Radio's Political Roundtable. The segment will air Friday at 5:50 and 7:50 a.m.

Superior Court Judge Sarah Taft-Carter, who is overseeing the pension dispute, ruled last year that a statute amounts to an implied contract. Flanders called that finding "the linchpin to getting into a trial. But if that decision is wrong, or if the Supreme Court disagrees with it, that could be the easy way out to the exit door here."

Flanders, who served on the state Supreme Court from 1996 until 2004, said during his time on the court he wrote a case involving retired adjunct professors "that basically said as much -- that contracts, absent an indication expressly in a statute that it's to be treated as a contract, is not to be deemed a contract, but it's a policy decision by the legislature that can be changed at will. So I think in the long run here, if it were to go to trial and up to the Supreme Court, I would think that argument would carry that day."

"But it's a risk," added Flanders, now a lawyer in private practice, referring to a trial. "And everyone knows that that's why cases settle, because the stakes are so high. It's always better if you can to get an agreement, even though it may be a bad agreement in some ways, than to risk all the expense and difficulty of going to trial." 

Flanders' view that the state would hold the upper hand in a trial echoes what Frank Williams, one of his former Supreme Court colleagues, has been telling workers and retirees in closed meetings on a proposed pension settlement. Williams is serving as a special master in the case.

Taft-Carter is on Thursday considering motions related to the pension dispute. The deadline for workers and retirees to vote on the proposed settlement is Friday, although it remains unclear, due to a gag order, what will constitute approval or rejection of the settlement.

Flanders said he couldn't comment on the gag order imposed by Taft-Carter in the pension case, since one of his partners at Hinckley Allen is representing some of the cites and towns in the case.

"But I will say say this," he added. "Gag orders in general are disfavored, because they are a prior restraint on free speech. So any time you impose a prior restraint, it should come under the strictest scrutiny. And in the case of the press, it really does put limits on where they can get information."

"I mean, after all, the best source of information in these cases is typically the lawyers in the case -- the people, the parties who know what's going on," Flanders said. "And so it has implications for the press' ability to report accurately on what's going on here."

Flanders: State Has Edge in Pension Case; Gag Orders Generally
Flanders: State Has Edge in Pension Case; Gag Orders Generally "Disfavored"