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Paul M. Secunda, Constitutional Contracts Clause Challenges in Public Pension Litigation, 28 Hofstra Lab. & Emp. L.J. 263 (2011)

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28 Hofstra Labor & Employment Law Journal 263 (2011)


The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the necessary legal justification.

Although such Contracts Clause litigation might be successful in a suit brought by the City of Milwaukee on behalf of its employees, it is unclear whether such arguments will be successful in other parts of Wisconsin or in other states. As the examination of pending pension litigation in other states underscores, there will also be different types of state legislation that may run afoul of public pension rights under the particular provisions of a state's pension laws. Because of the lack of legal uniformity in public pension regulation from one state to the next, the only possible way to determine whether state curtailment of public employee pension rights will be constitutional is by undertaking an in-depth legal analysis of the applicable pension laws, regulations, ordinances, court opinions, and prior case settlements.

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