thirteen l if you see g pushed amendments to the act that controls the pension fund in order to alleviate its obligations and basically avoid its agreements with pensioners under the fund this came after several lawsuits were filed between the parties in which the police and firefighters attempted to get the city to pay its obligations and to fully fund these these pensions the district court improperly dismissed the plaintiffs complaint below basically on a motion to dismiss the court decided the facts of the case ignored controlling law and granted it will be six motion  row then considering that the complaint is not required to be persuasive the court decided the facts and decided the law and ignored precedent from the supreme court in this court there's no question that the standard of review makes a difference here this is a twelve b six all you have to do is make adequate allegations or what i'm struggling with this the find of the case i think there's no question that there are protected rights for pensions and that we are cross this nation in trouble with funding those mass struggle here is trying to understand the particulars of how the coa fits within that definition of the underlying pension obligations because that could make all the difference as to whether you're protected on on what your best argument and your best authority for the fact that the within that underlying line right my best argument and i want to first say that we're not arguing that any adjustment to the cola is prohibited what we're saying is that for retired pensioners or the pension is vested in that particular cola benefits of vested those changes or are unconstitutional and the authority that i cite for that is there were two cases involving local teachers and it's a similar a similar theme where you have a group of pensioners group of public employees who were part of a pension plan in this case the teachers were transitioning to a state wide system from the city system and there was concern about who was going to pay for the remaining pensioners from that city in this case of the board of education level cases that we cited in our briefs and in th decisions the supreme court made it clear and this was in one thousand nine hundred one that the if the pensioners are paying are required to pay contributions and those contributions go to a particular benefit particular benefit the contract contractual rights to those benefits and you can look at those that decision was decided well before the pension fund in question here came into existence and so in one nine hundred eighty when the same sort of principle that you can trace the contributions that were newly required in one thousand nine hundred to offset the two to five percent cola increases that also were were amended in one nine hundred eighty so fifty one fifty seven of the complaint and essentially what we've alleged is that there was an agreement and the agreement became codified in the act and that the prior versions of the act the legislative history of the act record the agreement it's it's harder now to sit sit and say than twenty thirteen when the amendments were made that that's the agreement because you have to go all the way back to one thousand a d to trace when this two to five percent colo was secured so that's where it's improper for the district court to dismiss and decide that there was not an agreement based on this record you can't the court cannot we cited i believe it's the media com case that says that you can't determine the facts surrounding any agreement at the at the dismiss of the twenty six stage the pleading stage so in for the court to dismiss the case at that stage was improper now if in your and your agreement factual analysis or factual allegations are the legislative history that's correct in the legislative history is really the the timing right i correct well that's that's right it's clear another is there anything else in the contract statement in the code legislation there's nothing that says inviolable contract so that was not alleged we did talk about that there was an agreement based on the prior versions of the act that's repeated several times in those paragraphs and from that agreement there were changes made to that agreement that was alleged that the twenty thirteen changes were a change to the agreement kind of the interplay here between the police and  firefighters in the city and the state is important here because the commonwealth while it codified the agreement doesn't actually pay for anything from the fund the money doesn't come from them and they don't take the contributions they just kind of  expressed an interest in overseeing the fund but everything else is you know when we intend to prove that there was an agreement reached between the police and firefighters and the city that said not agreement was taken to the general assembly to be codified and in one thousand nine hundred that's what happened and you can look at throughout the history of the act and no other amendment was made or it took away from those rights they've always added to those rights  and in fact in a later year believe one thousand nine hundred they added to the cola benefits to retirees that retired prior to one thousand seventy four to bring them up to the same level the same sort of cost of living issues were there for them as well increase and none of the logical the problem for me and what i'm struggling with that is that in order to show a contract and legislative arrangements there is a presumption against it there is a presumption that it is not contractual that the legislature has retained its ability to make changes unless they do something like they did in the underlying conditions this is an inviolable contract but you can't get around it so help so i'm struggling with understanding what what even at the pleading stand gets you over that hurdle so that you step option and we can claim a contract the u s trust company case that we relied on it's a supreme court case that says in a footnote basically that in that case there was language in the contract that they looked at but in a footnote they said that you can look at the language and circumstances and there have been circuit court decisions since that time to say once you look at the language of the act you've got to look at the circumstances and you make that clear in your argument right and the question still remains right now what circumstances layer that would that would be sufficient to make to enable you to say that you have to play a good beyond of the presumption well what i would say about the presumption is that also in the u s in that same footnote they cited two cases there's a dodge case in the brain chase and they're looking at circumstances there and in the doj case they noted that there were state court decisions denying rights to pensioners in the brain case they were saying that they said that there were circumstances that included state court decisions in earlier cases that declared that they had those rights so what we're saying is that the law in kentucky as it existed since one thousand forty one supports the fact that when you agree with a group of pensioners or public employees to grant them a pension with cola you've got to understand that the long kentucky is nine hundred forty one is when you do that and you set aside specific contributions that can be traced to the cost of living there's a specific rate increase for that for the cost of living that that creates the agreement and creates the contract that satisfies the contract clause without the inviolable contract without that language underlying the core pension requirement you don't need the magic language and the fact that there are other state statutes in kentucky that do have that language isn't doesn't matter you're supposed to and which side of cases in our briefing that that states that you're supposed to look at each pension independently there's a particular danger in this case is that some of these pension funds state that there is an inviolable contract but they don't do anything with respect to the cost of living like the teacher retirement system doesn't do anything the rest of the systems might say were take were except in the cola from the car from the inviolable contract language like your retirement say right but they don't have to accept it in yours because you don't have  write in my point about that is that if you if you look at it that way then you're basically undercutting the entire pension system and i don't think anybody would argue that there is no pension benefit that there is no protected pension benefit because the pension doesn't say inviolable contract so if you're comparing apples to apples where you you're looking at the cost of living statute there is no language in the cost of living provision that it's mandatory that has to be awarded there's nothing that says this is this there's based upon the circumstances of whatever even though is not in the act is this what i'm getting from you my time is up here but i would answer your question here six thirty also says that you can't increase decrease revoke repeal any provision any benefit conferred under the act so there is there is language in the act it says that but in addition my point is that if you're looking at circumstances and the language and circumstances tast that you have to look at the was the legislature intended to confer a contractual right and whether no contractual we under the mistaken ability doctrine here it's the same this is that's what you're talking about same well under that there has to be a clear intent by the legislature to create a right not to change a contract and that's what we don't pay off here which means you lose well i  respectfully disagree my time's up and i bore you can i ask are you going to take the time to ask what i would say is that at the at the time that the nine hundred forty one cases were decided when any point later when you confront or when you confer with a public body of public employees and decide to confer pension benefits and cost of living benefits that you have to understand that the state of long kentucky provides that those rights are protected the fact that you can look at it you can look to see a benefits are protected mutable ink can never be changed in public contracts in kentucky there's nothing in your brief the supports that there's no statute that says that i'll agree but the point is that when the changes were made to the cost of living you could look at the cost at the contributions that were mandatory from employees they went from paying eight percent to adding two percent to that to cover the cost of living and if you've got a vested right in your contributions then that would cover the the earmarks contributions for cost of living as well  the court i'm keith mormon i represent all of the apple lease except the commonwealth of kentucky the apple each have agreed to divide the argument with me taking twelve minutes and the commonwealth will have three  minutes the only question in this case as i'm sorry go have waiting for them in light on where we're having a leg with the lice this morning for some reason go ahead thank you your honor the only question is whether in hundred eighty when the general assembly decided to end the act a koehler rate of two to five percent it intended that two to five percent to never be capable of being amended in the future by any future legislature now is the court has recognized in its questions that requires that the general assembly in one nine hundred eighty intended to create a contractual bond that it could not break but the law presumes that a statute does not create such a contract and the only way to overcome that presumption is to show by clear evidence that they did intend to create a contract where we're not at the summary judgment standard standard that's right your honor and i'd like to address that the issue first and foremost is legislative intent and as we know legislatures only speak through the words of their statute so if it's not in the statute and circumstances and my argument is you would look at circumstances if the language of the statute was somehow out but you couldn't look to circumstances to then say you had an agreement that directly contradicts what the language of the statute is i would also say that yeah i'm surprised we would disagree on that because the problem with this statute is not that you have a contradiction of the language there may be something missing in in the involve contract wording of the underlying pension obligations there's no question the legislature said where we are our hands are tied this isn't  and your position is you haven't done enough here and so my question is why not why not two reasons your honor one it it might be that if there were legislative history you could consider that as a circumstance to shed light on what the legislature was intending in kentucky there's really no meaningful legislative history on most of it so we don't have any hearings we don't have any drafts we don't have any testimony to a committee none of that there so the only legislative history that the appellant's allege exists is the mere fact that two sections were changed at the same time which they contend must have reflected  agreement and i would submit that is simply not enough to overcome the strong presumption that the statute intends to create an agreement the general assembly certainly could have said in an index change for the increase contributions there shall be a cola which shall never change and they did not do that and so i do argue that the tube now come back and suppose that maybe they meant to do that or let's speculate they might have wanted to do that would be condor their argument is we aren't saying that we're saying you made a big deal well and the question is whether they have adequately alleged that there was some sort of a deal you know we all have to recognize this is an exceedingly sensitive subject we were talking about the pension benefits of public employees who have been rendered police and fire service to your community so you understand the concern and the concern that the contents have not been funded which has gone on all across america but the question before us is not dying that's the underlying problem the question before us is whether there is an adequate allegation based on the line which of the nineteen eighty x and i'm struggling to understand what else you need to see what else there is in the complaint your position is that there is nothing else right there is nothing else in the complaint there is this naked assertion that there was an agreement the appellant's in their brief often will say that we know there was an agreement but we don't there is sufficient for them to proceed to discovery i believe your honor they have to allege that the language and circumstances create the contract right what they appear to be alleging is that if you were to allow us to take discovery we might find some evidence that would show that that language isn't what it says there was actually a secret agreement that would make this inviolable and i do think that would violate statutory construction to thirty six years laughter the statute was passed a while people to comment on what they thought this change meant because there's been no allegation that there is an actual written agreement this is far different from cases where there was a collective bargaining agreement and clearly that created contractual rights and the collective bargaining agreement is reflected perhaps in an amendment as i understand the appellant's argument they simply want to go and i assume they haven't really said take depositions of people who were around in one thousand nine hundred eighty and see what they thought this change was going to do and my argument would be you could do that on every statute that ever got passed there's always people who have an interest in the statute and you could say well what did you think it was going to do i thought it was going to create a vested right well i didn't think at the end of the day it all comes back to the legislatures and not the intent of the people who were going to be affected by the change not the intent of the people who were involved well no your honor my point is i think you always have to go to the legislative intent and that any opening of the doors of discovery will not shed light on the legislative intent it might tell us what different people thought but at the end of the day that can't change what the legislature did and we know from the other statutes affecting public pensions in kentucky that the legislature certainly knew how to put the inviolable contract language  when the it wanted to and we also know that when it made a statute in volatile it exempted the co so our request that the court honor the fact that the legislature does know what it's doing and how to do it and not assume that well this time they messed it up and we need to allow discovery deceived there might have been a secret agreement that felons can't give us any details on who was it with who who what were the details and see if we can overcome the language of the statute i would suggest that that would be impermissible and you know it for many reasons some i mean it many ways the appellants are arguing that there's an implied contract where you can't have an implied contract against the government what if they are alleging which they haven't said that the chief of police was the one they had the agreement with well the l if you c g can only bind itself through an auction than we had an agreement but we can't tell you what it was but i would also argue that even without a full and twamley any such agreement can affect the statutory intent and it's always the legislative intent that matters and here the general assembly chose not to make this a binding call and as you said judge branch there's there's no case that we have found in the country that says a coal is a vested right they all say coal is something different whether it's tied to consumer price index or whether it's tied to a legislative grant there has to be flexibility with a cost of living adjustment that is the nature of a cost of living adjustment it's not the issue you could actually allege a contract such as a collective bargaining agreement yet might have a couple if there were yes if there was a fixed agreement that will never alter your coal none of the cases involve that none of them show that it's a it's a different jurisdiction but the case is an interesting case on cola because  there they had a cost of living based on c p i then they tacked on one percent then they took away the one percent and the allegation was we can't take it away and that court said well you don't have a property right in an ongoing cost of living adjustment i forget the language they use but it was a government fostered expectation only it was not property it was not an intent to creat two to five percent and they can never be changed that's what that's what they are arguing and that's that's what they were serving and that's that's what this appeal presents and the standard is that right that is what they are arguing and that is the contract they say was created was that nine hundred eighty the legislature created a contract that isn't reflected in the language of the statute that said the people who retire under a two to five percent cola will always get that two to five percent call but again that's not in the language of the statute and there's been no allegation of a collective bargaining agreement or some binding contract that would have created that right now actually the the cola has not changed as of yet has it it has changed your honor i don't think it's in the record but it it can change back to the two to five percent but only when the overall funding of the pension reaches eighty five percent oh ok that i have a five percent interest so no it's down to one percent arguably for some and we don't know for these particular appellants but it's now either one one point five or two depending on the amount of your annuity when the program plan reaches eighty five percent that actually it's again not in the record but i asked this week and it's currently at seventy nine percent so it's not yet at the eighty five percent threshold that would kick in the return to the tooth of course their complaint is that it's not going to be funded well what is the estimate thirty years i don't think it's thirty years there's a part of this case your honor that mr puckett actually filed three different challenges to the changes and there's one in state court that contested the funding in the two thousand and thirteen amendments to deal with the unfunded liability it changed the way that was to be paid so that it would be paid off over thirty years and i think the hope for that was that as years go yes pays down over thirty years at the end it will all be paid off but my point is i can't say that it won't get above eighty five percent long before the end because if it's going to be paid off in thirty years you would think it would be almost paid off and twenty nine almost paid off in twenty eight because these are equal payments towards the unfunded lot guilty and i apologize i'm way out of time but those are you had a lot of questions i wasn't sure the judge trench if you were commenting on due process but the sucker case or if you were asking me a question about it well it would appear that your response to the due process arguments and the property interest there's no property interest and to the extent any procedure was due the legislative process was the process thank you very much i think you s supreme court case that it was not intended to abrogate a state's eleventh amendment immunity so in order to the plaintiffs in the commonwealth versus kentucky retirement systems in two thousand and thirteen they only an implied waiver of community and i'll quote from the opinion the court held that the commonwealth quote implicitly waived a sovereign immunity in the context of determining the role of rights and responsibilities under the statute now under the u s supreme court discussed in in that particular statute the in contract language was there and then finally there can take a supreme court in that case was discussing waiver of the commonwealth immunity under the kentucky declaratory judgment and then it also briefly under can cite constitution section two hundred thirty one that is kind of the analogous provision that provides that only the general assembly may prescribe when the commonwealth can be sued and in what court and quite simply the opponent's campaign point to any any waiver explicit or implicit were guarding this pension fund and the statute that would allow the commonwealth to be know her so i just want to address a couple of issues there the the cities argued that the cost of living doesn't go well it doesn't go away completely and that's not entirely accurate they've instituted a scaled system and depending on how much money retirees receives in their pension if it's at a certain level they don't get a cost of living so it has changed for those those retirees we're not arguing that the cost of living as i said before can never be changed produced arguing that if you're if you're referring to the changes based on the twenty thirteen women's right and we're not arguing that the cost of living can never be changed we're just saying that for the current retirees according to kentucky law all they have vested rights and vested interests and their pensions and their cost of living as it has at the time that they retire they cannot be changed in every other respect the act treated changes to increased contributions and reduced pensions they treated those changes prospectively the only thing that applied to current retirees was the cost of living and we believe that that was  correct the district court didn't have a problem looking at the legislative history viewed the when it dismissed the case it viewed the legislative history as a legal question that they could examine they weren't the court wasn't concerned that something was not alleged there regarding the the that's a good point the district court was concerned that even with all of that as a matter of law there was not a claim stated it wasn't a pleading issue which is the distinction the i didn't to address one thing because the crux of our argument is that in one thousand nine hundred when the contributions were increased a specific specific percentage to offset the cost of this cost of living increase  what the the general assembly could have done at that point is say we're going to increase the cost of living for pensioners by x percent and done that and then left it to the actuaries to determine what the contribution rate should be that's not what happened here but that's what happens in other pension funds what happened here is the parties agreed they bargained for these specific rates to pay for this specific percentage of cut cost of living  the media com case is important and i mentioned it earlier and i want to reiterate that a motion to dismiss is not the proper place for deciding facts surrounding any agreement we've alleged that there was an agreement it was improper for the district court to go and resolve all the legal questions all the factual questions concerning that agreement the again i would have reminded court that the standard is not that we have to be persuasive but just plausible