Jean Dubofsky: One of a “Dwindling Breed of Unabashed Liberals.”

The Denver Post has referred to Jean Dubofsky as one of a “dwindling breed of unabashed liberals.”

https://bulk.resource.org/gpo.gov/hearings/108s/90303pt2.txt

I have to admit, I have a soft spot for these dwindling “unabashed liberals.”

But, former Colorado Supreme Court Justice Jean Dubofsky is also an evaluator of Colorado judges, an appellate strategist, an education advocate (indeed the founder of a think tank that provides public education advocacy), a campaign contributor, a “well-known liberal figure,” a “current full-time activist,” a “crafty legal mind” and a “powerhouse” lawyer.  This woman who considers herself “shy,” has drawn the attention of millions.

We recently learned that Boulder’s Jean Dubofsky is the author of a legal opinion that the Colorado PERA Board of Trustees uses to rationalize the board’s attempted breach of Colorado PERA pension contracts.  Over the course of her long legal career, Jean Dubofsky has fought for the rights of women and minorities.  Why is Jean Dubofsky wrapping up her legal career with an attempt to take earned, accrued, contracted benefits from pensioners?  I am utterly bewildered. Did Colorado’s public sector unions ask her to write this legal opinion?  I think she is on the wrong side of the PERA contract breach debate.

In 2009, Colorado PERA officials requested a legal opinion from Jean Dubofsky.  The legal opinion she provided to Colorado PERA attempts a legal justification for the breach of Colorado PERA pension COLA statutory contracts.  Colorado PERA Executive Director Greg Smith, before the Legislature’s Joint Budget Committee on December 17, 2009:

“We have obtained outside counsel’s opinion on this issue.”

Jean Dubofsky’s resume:

“ . . . at request of PERA (Public Employees Retirement Association) in 2009, provided legal opinion that general assembly could repeal automatic 3% cost-of-living adjustment for retirees without violating their vested rights . . .”

Jean Dubofsky in a Colorado PUC deposition:

“My most recent legislative experience (within the past two years) is . . . a legal opinion addressing the constitutionality of reducing the cost-of-living increase for PERA recipients.”

Did the Colorado PERA Board order this “outside” legal opinion from Jean Dubofsky because the board disagreed with the legal opinion of PERA’s in-house counsel on this question of the constitutionality of clawing back PERA COLA benefits?  Colorado PERA’s Executive Director, Greg Smith, has informed the Legislature’s Joint Budget Committee, in writing, that PERA COLA benefits are contractual, and he has maintained (in the press, and [possibly] before the JBC) that “actuarial emergencies” occur only when a pension plan is unable to pay current benefits.  If you find yourself blocked by the opinions of your “in-house” attorney, perhaps it’s best to consult an “outside” attorney.  Is this how it went down?

On February 21, 2004, Rocky Mountain News journalist David Milstead reported Greg Smith’s description of his legal research as follows:

“PERA general counsel Greg Smith said his research shows that actuarial emergencies occur only when a pension plan does not have the cash to pay current benefits, and that’s not the case with PERA, since the plan has $29 billion in assets and a constant stream of investment income that helps cover benefit costs.”

Greg Smith elaborates:

“In fact, Colorado has one of the only cases in the union that actually found a cut in benefits was acceptable due to actuarial necessity.” “And, in that case, what the court found was, well, since the system was completely out of money, had no money, it was paying its benefits out of current contributions with no reserves, out of current operating capital.”

Link:

http://www.copera.org/pera/about/listeningtour.htm

Dubofsky’s law practice in 2008:

“Currently, Dubofsky is a sole practitioner in Boulder, representing litigants in tort, workers' compensation, commercial, criminal, civil rights and family law cases.”

http://www.bizjournals.com/denver/stories/2008/05/12/smallb5.html

Dubofsky is the author of hundreds of legal opinions:

“ . . . successfully challenging the constitutionality of the workers’ compensation laws that reduced benefits.”

“While on the bench she wrote several hundred opinions for the court, including a landmark water law opinion that protected the public interest.”

“She continues a primarily appellate law practice to protect the civil liberties of Coloradans.”

http://www.cogreatwomen.org/dubofsky.htm

Dubofsky on appellate strategy:

“Dubofsky concentrated ‘on the composition of the court and how to pull down as many votes as possible instead of working on hitting a home run,’ says Rick Hills, then an associate in Dubofsky's practice in Boulder, Colo., and now an assistant professor at the University of Michigan Law School.”

http://alumni.stanford.edu/get/page/magazine/article/?article_id=43530

Dubofsky: Make your legal argument “appealing” to a court, “in the sense that they’re not going out on a limb in order to rule your way”:

“I’ve also always liked cases involving governmental issues—public interest kinds of cases—and they almost always have some public policy involved that’s usually timely; and if you’re creative enough, you’re going to figure out some interesting ways to develop the law.”

“I’ve always found that contract interpretation and statutory interpretation cases are the hardest to predict, because when you’re talking about whether something can be clearly interpreted, it usually means there’s more than one way of interpreting it. Those are pretty unpredictable.”

 “. . . because I’m a sole practitioner, I’ve been able to sit down and figure out, ‘OK, if I were judging this case, what would I want to hear and what would it take for the court to rule in my favor?’”

“This may not be true of the U.S. Supreme Court right now, but certainly when I was on the Colorado Supreme Court people looked for ways to accommodate. An opinion written by one person may very well include ideas from others.  So the cases resolved in a fashion that, if you thought about it, usually made sense.”

“In practicing appellate law, my theory has been to figure out what is the more likely way a court is going to rule in your favor. There are lots of rules of the road. Like: You usually don’t raise sufficiency of evidence on appeal; you don’t say that the trial court was wrong in terms of interpreting what witnesses said or their credibility; and you don’t usually try to go against a trial court’s finding of fact. That just doesn’t work. But you do have to find some legal issues that are significant enough for the court; and you’ve got [to have] a good theory going for you. So you go back and look at some of the treatises, and figure out where the rule you’re talking about came from and why. Then you can start putting together an argument that you can make appealing to a court.”

“I also oversaw a lot of the legal work that was done (at the Colorado Attorney General’s Office), kept track of the cases that were controversial; and if the governor or secretary of state had a legal question, I was the person from the attorney general’s office who would go over and talk with them and work through it."

“Q: You previously mentioned to me you would be retiring soon. Is this well-known in Colorado legal circles?

A: I’ve never done any kind of a formal announcement. A lot of people who see me know that I’m not taking on new cases—that I am either consulting or serving as an expert. I’ve done some reports for state agencies and things of that nature.”

http://www.superlawyers.com/colorado/article/Lone-Ranger/dce615f4-d7b2-4f82-853b-da8463e03a69.html

“You can make it appealing in the sense that they're not going out on a limb in order to rule your way.”

http://blog.superlawyers.com/2012/04/judging-her-judicial-career-what-jean-dubofsky-learned-on-the-colorado-supreme-court.shtml

Dubofsky’s political activity:

“Boulder County District Attorney Stan Garnett officially announced his candidacy for the Democratic nomination for Colorado Attorney General Thursday and will challenge Suthers, the Republican incumbent.”

“Garnett’s announcement came with two endorsements: Boulder County Sheriff Joe Pelle and former Colorado Supreme Court Justice Jean Dubofsky.”

http://www.coloradostatesman.com/content/991745-dems-excited-about-garnetts-ag-candidacy

“And Garnett has his ducks in a row, with endorsements from incumbent prosecutor Mary Lacy and former state Supreme Court justice Jean Dubofsky.”

http://coloradoindependent.com/2330/boco-buzz-ch-ch-ch-changes-continue

Dubofsky on Romney: “. . . can't be trusted to stand up for working families.”

http://coloradopols.com.lb.soapblox.net/main/50

(My comment: Hey Jean, we PERA members have “working families,” [at least we did prior to retirement].  Stand up for us!)


Dubofsky, public education advocate:

“Dear Governor Hickenlooper, Attorney General Suthers, and Members of the State Board of Education: As Colorado taxpayers and public education supporters, we ask you to stop wasting our tax dollars defending an indefensible school funding system.  We ask that you take into consideration those whom you represent: the children, parents, businesses and citizens of Colorado who all depend on a quality public education system.”

“Please do not appeal the Lobato decision.  Enforce it.  Our children have already waited far too long for a school funding system that makes it possible for every child to succeed.”

“Jean Dubofsky,” (and hundreds of other Great Education Colorado supporters.)

http://www.greateducation.org/wp-content/uploads/2011/12/dontappealletter010812.pdf

Dubofsky’s past role in evaluating the performance of Colorado judges (was she involved in the evaluation of any sitting Colorado judges?):

“Jean Dubofsky is a member of the state Judicial Performance Review Commission in Colorado.  She was a justice on the Colorado Supreme Court from 1979 until 1987.”

http://ir.lawnet.fordham.edu

“She has also served on the state's Commission on Judicial Performance; the Colorado Music Festival Board; the Commission on the Status of Women; the Judicial Performance Commission; Supreme Court Board of Continuing Legal and Judicial Education; and the Colorado ACLU Board of Directors.”

http://www.zoominfo.com/p/Jean-Dubofsky/27068562

Jean Dubofsky, in her efforts to protect the integrity of Colorado courts, and defend Colorado Supreme Court justices, tangled with the group Clear the Bench Colorado:

“The group I am a part of, Courts: No Place for Politics (www.courtsnoplaceforpolitics.org), has launched a long-term effort to educate the public about the value and integrity of Colorado's system of judicial selection and retention.”

http://www.denverpost.com/opinion/ci_16401231

“ . . . Matt Arnold appeared on the Your Show television program (moderated by Adam Schrager), debating former Colorado Supreme Court justice (and current full-time activist) Jean Dubofsky, representing the “Colorado Judiciary Project” (a legal-establishment special-interest group formed by Democrat state party attorney and Mark Grueskin.”

http://www.clearthebenchcolorado.org/tag/devils-advocate/

Dubofsky, target of conservative criticism:

“Next, Jean Dubofsky, a former Supreme Court justice with a crafty legal mind and a penchant for legislating from the bench, proffered a clever legal strategy.”

“Dubofsky is no neutral observer. She's a board member of the Colorado ACLU and two liberal think tanks that despise TABOR.”

http://m.rockymountainnews.com/news/2009/feb/25/hillman-dems-eye-another-end-run-on-voters/

Dubofsky harshly (unfairly?) criticized in Denver Post (comments) and in blogs.  (Clear the Bench Colorado has directed criticism at her . . . I’m not going to reproduce all of their criticism here.)

“The integrity of the courts in persistently serving the interests of her clients and friends is Justice Dubofsky's real concern.”

http://www.denverpost.com/opinion/ci_16401231

“Justice Dubofsky's concern is less with preservation of the alleged integrity of our courts, which is demonstrably open to question, and more with continued control of appointments by special interests served by an inner circle of connected attorneys, including Justice Dubofsky.  These attorneys ensure that no one who threatens those special interests will ever be appointed to the bench in Colorado.”

“Justice Dubofsky knows this, but she would rather fool you into thinking all will be well so long as she and her friends in the inner circle run the judiciary free from interference from the masses.”

http://brennanlawjustice.blogspot.com/search?q=Dubofsky#!/2010/10/of-judicial-retentiveness-which-is.html

“Former Colorado Supreme Court Justice Jean Dubofsky and Democratic Party lawyer (and one-time CEA lawyer) Mark Grueskin are forming a nonprofit group to educate voters about the judicial performance evaluation . . .”

http://www.clearthebenchcolorado.org/2010/05/10/former-colorado-supreme-court-justice-and-current-full-time-activist-jean-dubofsky-democrat-party-lawyer-mark-grueskin-roll-out-the-big-bucks-to-counter-clear-the-bench-colorado/

“Mark Grueskin, best known in education circles as a lawyer for the Colorado Education Association . . .”

http://www.ednewscolorado.org/news/capitol-news/gaming-bill-debated-delayed

Dubofsky’s involvement with Amendment 54:

“Speaking to reporters after the ruling, Mark Grueskin, who represented the unions in the suit, exhibited visible relief.”

“In arguing against the amendment (54), Grueskin was accompanied by Doug Friednash and former state Supreme Court Justice Jean Dubofsky.”

http://coloradoindependent.com/31997/unions-breathe-sigh-of-relief-as-judge-issues-amendment-54-injunction

As one might expect, Dubofsky and former Colorado PERA Board Chairman Casebolt are acquainted:

“Before the distinguished panel of Justice Allison Eid, former Justice Jean Dubofsky, and Judge James Casebolt, Director of the Moot Court Programs . . .”

http://lawweb.colorado.edu/news/showArticle.jsp?id=319

Dubofsky’s involvement in Colorado redistricting:

“She was also the lawyer that Colorado Democrats relied upon when they challenged a Republican-drawn redistricting map.”
Dubofsky said she was surprised to be selected (for a CU Football investigation).

"I thought I was too liberal," she said.

http://m.rockymountainnews.com/news/2004/Feb/17/a-look-at-the-panel/

“Another well-known liberal figure, former supreme court Justice Jean Dubofsky . . .”

http://www.ednewscolorado.org/news/capitol-news/gaming-bill-debated-delayed

Dubofsky’s involvement with state spending limits:

“Morse, however, with the backing of a powerhouse legal team that includes former state Supreme Court justice Jean Dubofsky, reiterated that Arveschoug-Bird is not a spending limit and that a recent Supreme Court ruling provides precedent to that effect.”

http://coloradoindependent.com/22653/morses-6-percent-solution-budget-bill-clears-first-hurdle

Colorado PERA active members and retirees, four years have passed since Jean Dubofsky wrote her “COLA-taking” opinion for our Colorado PERA Board of Trustees.  Perhaps she has had a change of heart in the interim?  I challenge Jean Dubofsky to read all of the comments that have been posted to the site saveperacola.com, and upon completing this task, to determine if her legal opinion of 2009 remains supportable.

Colorado PERA active members and retirees, I challenge you to support the rule of law in Colorado, to contribute at saveperacola.com, and to Friend Save Pera Cola on Facebook!

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3 Community Comments, Facebook Comments

  1. hawkeye says:

    Many folks out there, including "unabashed liberals", have the impression PERA members and retirees have too much of a good thing … especially in regards to the now defunct 3.5% annual increase, and feel no moral anguish in the claw back of retiree benefits. TABOR has, in essence, taken away the ability of the state legislature to make good on public pension obligations.  And, any public vote to increase funding would surely go down in defeat.

    I found a document comparing COLA's among the states.  Colorado PERA's previous 3.5% annual increase was somewhere in the middle for state plans which do not include Social Security participation.

    http://legis.wisconsin.gov/lc/publications/crs/2010_retirement.pdf 

      

  2. Algernon Moncrief says:

    Hey Hawkeye, agreed, there are many who believe that public sector workers are overcompensated (including deferred pension compensation), and there are many who believe that these workers are undercompensated.  These public opinions have no relevance to the sanctity of existing governmental contracts.  Perhaps public opinion will influence the development of new public worker pension contracts in the future.  I also have opinions relating to the “fairness” of compensation for various professions in the United States, but my opinions are unrepresented in contractual compensation terms for those professions.

    The official long-term inflation assumption of the Colorado PERA Board of Trustees in 3.75 percent. When PERA’s “automatic” COLA benefit was enacted, Colorado PERA official Rob Gray testified to the House Finance Committee that the COLA would approximate PERA’s inflation expectations.  The PERA Board of Trustees is essentially seeking to inflate away the pension debt of their affiliated employers. When inflation is low, the 3.5 percent PERA COLA looks attractive.  If Bernanke’s quantitative easing results in high inflation, the PERA COLA will appear unattractive.  

    TABOR permits Colorado governments to propose tax measures.  The Colorado General Assembly should have referred such measures to voters every year for the last two decades.  It is the responsibility of the Legislature to inform Coloradans regarding state funding levels necessary to meet contractual obligations and to fund discretionary public programs.  You are correct that Colorado PERA retirees cannot rely on Social Security.  Even if these retirees worked in the private sector for decades, their Social Security benefits will be offset by PERA benefits.

    If the Colorado General Assembly is in the midst of such a financial “crisis,” why has the Legislature given away $100 million grants of discretionary property tax relief (one grant just last year)?  Why has the General Assembly pumped $538 million into local government pensions that ARE NOT the legal responsibility of the state?  The General Assembly has made one-half billion dollars in discretionary grants to fund pensions that are not its contractual obligation, while ignoring its own contractual pension obligations (approximately $5 billion in skipped ARCs in the last decade.)

    If Colorado PERA is to be “reformed,” it must be reformed legally, prospectively.  Such legal pension reforms are being adopted across the nation.  The Legislature just didn’t bother to look for, or consider, sufficient legal pension reforms.  Under their bill, SB10-001, the Colorado governments that legally owe the debt contribute a mere ten percent of the PERA “fix.”

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