the primary issue before you today is the review of the lower court decision which interpreted a previously an interpretive provision of the texas constitution oracle sixteen section sixty six which was adopted in two thousand and three the issue is does the term benefits accrued refer to something that locks in on the day that you vested in the plan is that term is defined within the plan document itself in the case of fort worth five years of service and whether that formula that determines how this defined benefit is later paid when one retires does that apply to future service or only to service earned up to the da that's the attorney general opinion g a o six one five which was drafted by then attorney general now governor abbott in two thousand and eight actually involving the city of fort worth plan within that attorney general's opinion the a looked at a number of state constitutions in our sister jurisdictions to texas that had had either identical or similar language alaska and hawaii both use the term accrued benefits or benefits  accrued within their constitutions and they both have substantial jurisprudence that defines the term as the opponents have defined it here that is when one gets to whatever vesting is defined and it's entirely within the control of the pla sponsor of the employer to decide what the term vested means fort worth could have had one year five years twenty years they chose five but once that constitutional provision passed and you cross that finish line that point to demarcation all aspects of the plan will apply not only to the service that you are crude but to the service that you have after now is the city free to change the plan for new hires yes that is is it free to change the plan for non vested employees yes it is isn't free defined benefit that whole nature of the plan is the benefit is defined at the beginning once  so that's not necessarily an unfriendly question so that because it's defined in the explanation you have to stick with that methodology yes it out regardless of whether the actual benefits themselves the monetary benefits have accrued it's the system that is the defined benefit yet it is accrued your correct your honor and to get back to judge jolly's question really the two best cases the attorney general cited in both one is a case out of massachusetts that says when one speaks of benefits in a defined at least state or local government plan wonder first to quote the whole complex of provisions and that was picked up by the alaska supreme court in hammond versus stock but there's a better example of a case where i worked in the attorney general discussed a case called fly soccer says alaska divisional retirement and what happened is fly psycho's to work as a school employee and in at the time he went to work they had a rule that said when you leave if you have an use sick time or you have unused vacation time you can cash that out and add it to your final years salary because a defined benefit plan is a percentage of your salary so if you have the chance to bump that up in that last year obviously you'll get a bigger pension while fly stock was employed alaska changed the rules and they said you can't st accumulated leave in your final year salary anymore but the alaska supreme court said because that was the rule when fly stock vested in their plan now alaska vest on the day one but it said because that was the formula when he went to work that was the reasonable expectation of the parties and that's really what you look at in an impairment case so i think that is our best authority ok you know to the reasonable expectation of the parties to the definition  cruisers yes or the yes your honor that the reasonable expectation of the parties after the adoption of the constitution was that it was intended specifically to provide that this formula locks in on the data vesting and term that was originally in the early draft of house joint resolution fifty four which was the legislative act that got to the elect the wars in two thousand and three in fact the city cites to some legislative history involving one of the earlier drafts and the earlier draft said this is only intended to apply to service burned to date and it also used the term accrued financial benefits meaning and other words you say they would have defined a crude but you cannot tell me any other word that they would have used other than a crude they could have used a crude financial benefits and with here's an excellent discussion within the attorney general's opinion of the distinction between constitutions that use the term accrued financial benefits or recruit monetary benefits and those that use the term accrued benefits michigan for example has a specific provision that speaks to a crude financial benefits and within their constitutional  what you're arguing that but but the term financial benefits was taken out of the draft and when the usa came to differences it does make a difference respectfully rahner here's the difference if i may explain if i said a crude financial benefits that would equate a benefit with a dollar or a you know a accumulation of dollars but to use the term accrued benefits and unfortunately without any better explanation from anybody the term current benefits has been interpreted by other jurisdictions to mean the whole complex of provisions and in fact even the city admits in its brief that the term accrued benefits includes not only money but the formula where we have differed in this case and where i believe judge means got it wrong is he assumed that the legislature and ultimately the electors of texas meant that this was just to have no forward looking application there was language in the in the original constitutional provision before it was made its way all the way through the legislature that said this is only for benefits accrued up to this point up to whenever you make a change that language was excised and the texas statutory interpretation language is very clear that when provisions into an act and then check it out of the act the legislature meant to reject that language but even if if if you if you this court think that the provision is ambiguous we'd of course asked you in the absence of any other jurisprudence if you feel you cannot give deference to the attorney general's opinion then rather than than guess what the courts of texas might say you have the ability to certify the question we've recommended language to questions we're not suggesting that that's the only questions that the court could say you know normally i think it's best to certify very complicated issues to let the courts decide for themselves what their law is and we've had a number of cases we've certified but in this case isn't it like getting a second bite of the apple if the fact that the certification is sought so late in the day is it is it appropriate to certify once you get up to all these rulings that you don't like it where you haven't asked for certification all along under the texas constitution only thirty six other states that allow for service no forty six other states that allow for certification a texas trial court a u s district court in texas cannot certify a question it can only an appellate court either this court or the united states supreme court can certify a question so it could have been asked no earlier than where we are right now but we think that's that we think that what is appropriate is and that's the attorney general we don't think you have to certify the question we think our interpretation respectfully is the correct interpretation and the judge means scott are wrong but even if we lose on section sixty six that still doesn't get to the fact that this was a federal impairment case section sixty six decision in our favor would effectively moot the rest of the case and it would have the case would be decided strictly as a matter of state law but if we lose is a matter of state law but we still didn't get to the question of whether the contract was impaired and i think this court's decision in united health which involved the health care here in louisiana contract between the state united health which was cited below is a good example that's where i got the phrase the reasonable expectations of the parties because impairment is a federal question while the while the contours of the contract may be decided by the law of the state it is a federal question to be decided by a federal court and if so even if sixty six wasn't there what is the reason   we were prevented from discovery but there is evidence in the record that shows that for many years the multiplier in the plan was three percent for many years the multiplier in the plan or the the salary calculation is your highest three years now at your highest five which means the benefit went down by about twenty twenty five percent looking forward and when one vests in the plan the language of the plan the plan documents which were made part of the record the explanatory materials from the board of trustees that runs the pension system all said when you vest you could leave i could work in fort worth for five years under the oprah and  still five years i could work for five years and go go to law school go be a firefighter go work in another city and all i have to do is show up when i reach a certain age and my pension can't be changed but for the officer that stand it after five years the reward for staying in the line of fire and the reward for continuing to serve the citizens of fort worth is we're going to pay you less than what we paid you before and despite the fact  texas jurisprudence that preceded the constitution the trammel case from one nine hundred thirty seven and even byrd from one nine hundred twenty eight says pension is a contract subject to impairment only by the reserve power of the legislature yes yes your honor the city is always free to say that person hired to morrow will work under a different regime the city is always free to say that person is not yet vested you haven't crossed this point of demarcation that would you agreed to work to at least to earn this right that we can change that and vested means something as a group vested is it vested means you have you have worked a certain number of years and in return for which the plan has granted  you an expectation of a benefit not only for what you did in the past but for what you will work for in the future you don't get pension benefits if you don't keep work and that the deal under which you agreed to work  the certification you definitely avoid it then what i think is the main impediment is that you thought the federal jurisdiction so assertively it's not whether or not you could have earlier put in your case because this is an impairment case and with or without the constitution the city impaired the contract of its workers under both the pre two thousand and three and the post two thousand and three standard that applied we never got to the federal case because in response to a motion to dismiss the trial court said we're just going to decide this on the question of the state law and when the judge ruled against us on the state law he should not have dismissed the rest of the case  take just a moment to express the deep gratitude that the city of fort worth has for the service that the appellants and their colleagues provide both to the city and to its citizens certainly the city takes very seriously the relationship that it  it is yes your honor a legal issue but part of this informs the reason that we are here today because the city has committed to providing defined benefits for its public servants it has a responsibility to ensure that it construing the texas constitution the court should rely heavily on the words that are actually used the literal text and their plain language before we even look at the text of the constitution i think that it is helpful to discuss the context in which section sixty six d was created in that context is this in one nine hundred thirty seven as mr clause in a reference to the supreme court decided the city of dallas versus trammell a case in which the court held that a vested pension or had no protected right to any sort of benefits upon retirement were guard listen when those benefits had accrued in two thousand and three some seventy years after the trammel case was decided the texas legislature proposed a constitutional amendment that would ensure that the accrued retirement benefits of a member of a pension fund a member of some retirement fund that those accrued benefits could not be reduced or impaired by subsequent unilateral legislative action you have in your briefing in several different places the language of section sixty six d and according to the plain and ambiguous language that is used in that prevention we know that a city may not enact change is to a retirement system that would do says or otherwise impairs that's the language used benefits accrue in other words benefits that have been accumulated prior to the date of the change by vested members of the city's retirement system who are or will be eligible to receive those benefits are you attach no significance to the fact that the word financial was considered in the not used then why is that as part of the legislative process this language started out in the house the house took the lead in coming up with the language originally that would be used with respect to this particular provision there were several different versions that were floated for lack of a better expression that they came up with language there was words dropped out originally there had been an inclusion of saying that this was going to be a contractual right that was taken out other words were added in subtracted this is not a situation where a statute was being amended that was already in place and as part of the amendment of a statute words were taken out that specifically had been used before this was the creation of constitutional language and the house took the lead in coming up with what it was trying to do in putting this provision in place all of the legislative history appellant's rely upon with respect to the meaning of section sixty six d were late to the version of sixty six day that the haves created why is that relevant it's relevant because that is not the version that actually was passed by the house and senate and then went to the people of texas or a vote and that ultimately became section sixty six d of the texas constitution so the fact that there was language in the legislative history that there was information that was discussed doesn't really make a difference so all of the legislative history that the appellant's rely upon has to do with the earlier version that did not become sixty sixty the senate version which is now sixty six days the legislative history there absolutely supports the city's position on this particular action that you're advocating allow the result tr you know if the interpretation that you're advocating would allow the very result untrammeled which was the the issue you do not believe it would i do not why not in this what trammell decided the supreme court in the trammel opinion said that yes by virtue of a contract of employment an employee has the right to participate in a retirement system but there is no right to particular benefits under that under that system sixty six d was put in place to change that very thing creating a right to receive benefits accrued for service already performed and that's the critical distinction we're going to protect the benefits accrue that's why that language is used in sixty sixty but we're also going back to the legislative history that we were just discussing going to allow for flexibility i know this is cited in the brief but i think it bears emphasizing here there is language in the senate's legislative history that tells us that this amendment would permit local public retirement systems to make changes in the provision of certain benefits as long as the changes apply prospect that's the amendment would also give those retirement systems the flexibility the system needs to adjust retirement benefits if necessary to respond to changing economic times while still protecting the benefits that local government but at least promised and therefore accrued in that sense there never has been since the time of trammell and expectancy right to future benefits in the state of texas so where that promise comes from i do not know trammell says you may have the right to participate in the system you don't have the right to particular benefits sixty six d was put in place for that and that certainly does not promise them that they are going to be given benefit the formula that is in place when they best in fact that's why the detailed breakdown of do you want indeed to do within that overall constitutional provision this is not a case that can be resolved by looking to  interpret those constitutional provisions goes back to the contractual relationship that is created constitutionally in every one of those states most of the constitutional provisions are referenced in the briefing but in alaska and hawaii and illinois and michigan they all speak in terms of a contractual relationship between the employee and the retirement system that is when the right vest in those states if you become a member of the retirement system you have all of the right contractually that are in place at that time that is not the language of the texas constitution if you look at alaska for example membership in employment retirement systems of the state or its political subdivisions shall constitute a contractual relationship we have no contractual relationship in the state of texas what we have is a promise that accrued benefits will be given for past service at to the point of that change once there is a change we can prosper actively alter the benefits formula and the reason for that is to protect us from many of the bad situations that have resulted in other places just last week in the city of chicago they found that they cannot do anything with respect to their pension plans because  constitutional provision that makes pension protection a constitutional question if there is a contract excuse me a contractual relationship in illinois between those employees in the retirement systems we do not have that language so all of the reference to flies up in alaska what it the gens case in illinois where ever it is has absolutely no bearing have any states interpret it this way no other state ca where and that we're aware of have created a constitutional provision that addresses the issue in this way so we are trying to heat in texas from happening what has happened to him and fortunately gree and some other states by the novelty of of texas approach as you state that they have a novel approach that they tried to do this unique way and given the fact that the attorney general has weight is in on this unique way of doing it and given the fact that it's so important as you lead off to cities in their police officers why shouldn't we let our ask  the texas supreme court to take this issue of texas law rather than having us make an eerie guess given the extreme importance and the novelty there are a number of questions how to within that the way i'm listening to well you can do that we don't think that this is a case that needs to be certified why not we don't think that it needs to be certified because somebody can win the record and i think well i would like to believe that we would win in any court that is looking at reasoned way and analyzing the language of the constitution the way that it has been written so we're not afraid of going to the texas supreme allies didn't what he thought was a reasoned way yez a very knowledgeable constitutional lawyer about i am i will say that we believe that in the texas supreme court we also would get the right result the reason that we do not believe that this case needs to be certified to the texas supreme court however  court has not answered this question is that the the court has given as very clear rules about how we interpret statutes and constitutional provisions giving effect to the plain language looking at all of i take your point and in the abstract with respect to this particular case i respectfully disagree with you because i do think that you can easily get to the proper construction by using the well established rules of construction that texas has laid out which is exactly what judge means and judgment bride did they independently and to the well supported conclusion that the language means what we have said that it needs and i think even the attorney general's opinion that we've talked about support counselor ok but the agency opinion does not get that appellant's where they want to go the attorney general in his two thousand and eight opinion was addressing a very different questions that are relevant but let me ask you one of those no relevant when i looked at the constitution before i read and buddy bri beneficially crude well let man be when they come to retirement come to retirement the city never has argued that had no bar that's not what we believe it's the when they return our respectfully just briefly i disagree with that in the end the reason for that is the language of sixty sixty if you look at all of the language that cannot be the proper meaning  of sixty sixty we know there that the predicate is that we cannot as the city change benefits that have been approved by a person if that person first would have terminated employment or retirement system on any day on or after the effective date of the change had to change not occurred which means we're not waiting until we're tired or i'm going looking at it as of the date of the change what benefits have you  three of us and i'm trying to stick with the language of the constitution that says we're going to give you the benefits that you have accrued as of the date of the change and are the factors that were in place you're going to get one hundred percent of what you're entitled to under those factors up to the date of the change so nothing is going to reduce or impair those benefits whatsoever going forward tell me whether i have an answer there i didn't want to cut you off if you had something further on that but i have a question back to the a g opinion as me where it says you know the critical question is what does accrued me and it says benefits accrue this limited and they say the dispositive question is whether the term benefits critics limited to benefits attributable to services already performed and then the conclusion is accrued benefits includes the method for determining the compensation when it decides it includes the method for determining the compensation that he's not favorable to  you although i think you said earlier that the ag opinion is very favorable to you i don't think that's favorable to you so i can't help you with that but the reason that i'm not concerned by that terribly is that it's taken out of context you have to read it in the rest of it we would say we would say that determined a crude benefits as used in the constitution includes the method for determining the compensation base for calculating retirement benefits up to the point of the change and we believe that the g opinion stands for that very thing not only can you read the next sentence that talks about the constitutional provision prohibiting a change in the method of best employees if such action reduces or impairs retirement benefits that the employee would have been eligible to receive on or before the effective date of the change that's an important senate but most important is the footnote at the very end of this a g opinion that says it is the city's particular chosen method for addressing the unfunded liability of the retirement system that we conclude may violate texas constitution article sixteen section six hundred sixty the city could have addressed an unfunded liability through other means that would not violate the constitutional provision why is that so important this a g opinion is in the context of vested employees and in putting that good now in place the energy is telling the city of fort worth on the colo where they get by isn't it dispositive if they have evidence that reopening the election will impair the value of the choice they've already made as a matter of law the city has not taken any action with respect to the cola that impairs or reduces their benefits all the city did was present an option and members chose or did not choose that option any a fact is not the result of you know that you lateral legislative action on our part it is an option that was created so whatever effect there is is not attributable to the city's action but to the election says you can pick a survivor and give some your money to that person if you get hurt you get a disability you can have various other feature choices and when you reach best of five years and by the way the city could have set it at retirement age baltimore maryland does just that if you're a police officer in baltimore you have to work right up till the date figure old enough to retire or you don't test at all you get nothing fort worth shows five years and said at that point that whole complex of provisions that and i think something very important from the attorney general's opinion at star six the attorney general wrote there is no persuasive support for the view that the constitutional amendment was intended to protect only benefits attributable to services performed prior to the change that's the chief legal officer of texas saying that this is meant for that discrete group of people who is vested on the date and ordinance changes the great irony in all of this is unlike any of the other constitutional provisions in the country and i can say to the court without hesitation that at some point in every state or local government employees career in this country in the seventy five hundred plus defined benefit retirement plans that there are at some point every one of these things becomes a contract it doesn't need to say it's a contract only nine states have specifically put an extra provision in the constitution about pensions remember texas also has a provision its bill of rights its declaration of rights that says the legislature and cities cannot impair the obligation of contract we never got to the u s trust versus new jersey reasonable and necessary i know the city made a point the bill of rights versus new jersey which is article one section ten of the u s constitution but did you argue the texas bill of rights we cited in our complaint but remember of the court decided your honor that in it's in response to the motion talking about anything else in this case we're only going to talk about section sixty six and that's why even if i lose on that point even if officers van houten hall lose on that point you should vacate a decision and send it back and say they allege this texas constitutional right against impairment of contract you didn't get to it they alleged in article one section ten of the united states constitution impairment and you never got to i was created by the state legislature article sixty two forty three one of that alphabet soup they got there in the texas of the statutes and the legislature changed the law and that's because they said the constitution says that the legislature in a republican form of government has this reserved power cities or corporations their municipal corporations they are not the legislature and we argued in our brief a substantial distinction between a city's reserve power which it does not have and a legislatures in even if the legislature had a reserved power it can only impair a contract under or to one section ten of the u s constitution for compelling reasons your own city argues that this is all about the money the context of that man finish the question just within the context of the constitutional provision that's where the term benefit accrued means if we did never act article sixteen section sixty six and the city did what  we would still be free to bring in article in article one section ten of the us constitution impairment of contract argument because the texas supreme court says it's a contract subject to some reserved power and the question of whether the reserve power could be argued remember us trust was around one hundred thirty seven is subject to the reasonable and necessary clause that dates back to the birth of our republic in the federalist number forty i think we can and wrong is an x case because you're