On May 17, 2013, I personally hand-delivered the following
21-page petition to the United States District Court receptionist who then
placed it in the in-box for the Honorable Chief
District Judge Ann Aiken of the U.S. District Court of Oregon at:
5500 United States Courthouse
405 East Eighth Avenue
Eugene, Oregon 97401-2706
All Oregon citizens who are school-age children or who are
the parents or grandparents of such children are welcome to join my
petition. My children are
University of Oregon graduates, so I might lack standing according to the rules
of the courts. Therefore, the
petition could need additional names with indisputable legal standing to go
forward.
Steven A. Sylwester
May 19, 2013
* * *
My name is Steven A. Sylwester. I live in Eugene, Oregon. I was born in Portland, Oregon, in 1954, and I have lived in
Oregon for 49 years. I care about
Oregon.
I was a union officer for more than 15 years. I served as an at-the-table negotiator
on my union’s Negotiating Committee through all of the negotiations for two
labor contracts.
I wrote all of the following myself as a committee of one
without the counsel of anyone else.
I have attempted to be thorough and complete in my arguments without
being too long-winded. However,
the PERS problem is a big problem and its solution will hurt many people,
including members of my own family and several of my friends. Consequently, I have tried to be kind
where it would have been easier to be brutal.
Unfortunately, the human impulse is often to blame the
messenger when bad news is received.
I am the messenger in this case, so I expect to be on the receiving end
of hatred from some. But the true
authors of the spirit and the intent of the truth that follows were those who
authored the Constitution of the United States in 1787 and the Bill of Rights
in 1791. Why I have had the eyes
to see what they wrote while others have not to this point is not something I
can explain. Nevertheless, what
follows is undoubtedly true.
After much pondering, I have decided to post this on my blog
so anyone and everyone can read it.
I am one who believes and confesses that Jesus is Lord, and Jesus
instructed his disciples with these words: “Freely
you have received, freely give.” (Matthew 10:8) My obligation is to do just
that.
Many will want to thank me in some way, so I have created an
opportunity for that to happen by making the following available as an e-book
at a minimal cost. If you choose
to purchase a copy for yourself or a friend, thank you.
Steven A. Sylwester
May 17, 2013
* * *
Jesus said, “See that you do not despise one of these little ones. For
I tell you that their angels in heaven always see the face of my Father in
heaven.” Matthew 18:10 (NIV)
I hereby petition the United States Government through its
federal courts for a redress of grievances on behalf of the school-age children
of the State of Oregon who are suffering an unfair dismantling of their public
school education opportunities as a consequence of wrongful and illegal tax
money mismanagement by adults within the state government.
Specifically, the State of Oregon’s Public Employees
Retirement System (PERS) pension plan is unconstitutional because it violates
the Fifth Amendment to the U.S. Constitution. Therefore, all current PERS pension contracts that are in
violation should be legally broken by being made null and void as soon as the
violations are confirmed, and should thereafter be reestablished with any
remaining funds in a fair manner according to all constitutional restrictions
and limitations.
SYLLABUS
Statesman Journal state workforce
reporter Dennis Thompson Jr. wrote:
The article begins:
“PERS tiers explained
One of the recurring headaches of explaining Oregon PERS to
others has to be describing the three tiers of the pension system.
Understanding the tiers is fundamental to understanding the 2003 PERS reforms
and the system's ongoing financial status. But it is crazy complicated.
So you can imagine my pleasure when I found that the City
Club of Portland's recent report on PERS contained a really great explanation
of the tiers and how benefits are calculated for each. I'm reprinting a big
chunk of their explanation here, as a matter of public service:
The first category, known as “Tier 1,” consists of
employees hired before January 1, 1996. The second, known as “Tier 2,” consists
of employees hired between January 1, 1996 and August 28, 2003. The third,
which functions like a “Tier 3,” is for employees hired on or after August 28,
2003. This third category is commonly referred to as “OPSRP,” which stands for
the Oregon Public Service Retirement Plan. …”
(Read the entire “big chunk” from “the City Club of
Portland’s … report on PERS” that is linked above for “a really great
explanation” of how PERS is structured)
It is impossible to photograph a train wreck in a way that
tells the whole story of what happened.
Even more impossible is the task of photographing a train wreck while
the wreck is still happening — actually before much of the dust that will be
blown from its place on the earth to eventually settle somewhere else has
experienced anything other than an average day. Such is my challenge here: the impossible task of adequately
describing the PERS train wreck that is still happening in every community of
any size in the whole state of Oregon — every town, every city, and every place
in between.
Sadly, there is no way to stop a train wreck that is already
happening. At best, one can only
hope that the inevitable damage can be somewhat diminished or maybe controlled
by a thoughtful intervention. But
certainly there will be victims no matter what is done or not done; terrible
sadness for some cannot possibly be removed from the eventual outcome, but a
joy and a future can still be accomplished for most.
Oregon is a place where such a thing as the PERS debacle
could happen. The state is
significantly populated by the offspring of: 1) many who would have gone
farther west if only the Pacific Ocean were not there to stop them; 2) solo
brave adventurers who were (and are) not afraid to be foolish in the eyes of
others; 3) people who abandoned the conventions of where they were from — even
heritage, even religion, even God; 4) those who are still hippies and ‘60s
dreamers; and 5) cussed people who just will not endure being told what to do
by others. Many (probably most)
Oregonians are fiercely independent people who are willing to let their
neighbors be, and that comfortable distance between each other is what is now
on the verge of destroying the workings of our state. We can no longer stay out of each other’s business because
that option is now gone. PERS is forcing
every adult amongst us to now stand up and be accountable to everyone else,
especially to our fellow Oregonians who are our children. God help us.
Enough of the PERS train wreck is visible in the following
linked articles. Read them.
April 8, 2013: Local Opinion:
Oregonians pay price for deeply flawed PERS
By William Gary, an attorney
shareholder in Harrang Long Gary Rudnick PC in Eugene
April 24, 2013: Oregon
State Legislature: Lawmakers have strong ties to PERS
system:
The House will vote today on a
Democratic plan to cut pension inflation adjustments
By Jonathan Cooper, The Associated
Press
April 25, 2013: Oregon State
Legislature: Democratic tax plan scuttled:
The House defeats a bill
increasing taxes on the wealthy, but it does pass modest cost savings for PERS
By Saul Hubbard, The
Register-Guard
April 25, 2013: Editorial: Where
the money is: PERS:
Bolder pension reform needed after
tax bill fails
May 4, 2013: Guest Viewpoint: PERS’
payoff depends on workers’ investment decisions
By Clint Brumitt, retiree who
worked in public schools in Southern Oregon for 34 years
Official State-generated PERS reports can be read at:
An independent wiki page with very
scary information can be read at:
QUOTE: Funding levels
PERS
states that it is 86% funded, with an unfunded actuarial liability, including side
accounts, of $8.1 billion.[1]
The
state's pension liabilities can be calculated in a variety of ways, which yield
different numbers. Below are the numbers as calculated by to the Pew Center on
the States,[9] the American Enterprise Institute[10] and Professors Robert
Novy-Marx of the University of Chicago and Joshua Rauh of Northwestern
University, Kellogg Graduate School of Management.[11]
In Thousands
PEW (2008) AEI
(2008) Kellogg
(2009)
$10,739,000 $42,203,565
$37,800,000
Other
information from the Pew Center on the States
Feb. 2010 publication "The
Trillion Dollar Gap":
State Pension Funding Levels 2008
(figures are in thousands)[9]
Latest
liability $54,260,000
Latest unfunded liability $10,739,000
Annual required contribution $707,400
Latest
actual contribution $707,400
>> COMMENT: Translated, the
above quote reveals that PERS calculates according to its own economic and
demographic assumptions an unfunded actuarial liability (UAL) of $8.1 billion,
but that three other reputable and noteworthy sources have calculated the UAL
for PERS according to their own economic and demographic assumptions with
startlingly different results: PEW calculates a $10.7 billion UAL, Kellogg
calculates a $37.8 billion UAL, and AEI calculates a $42.2 billion UAL. Obviously, a prudent observer would
conservatively conclude that PERS is vastly underestimating its UAL. Indeed, a simple average of the four
UAL numbers results in a $24.7 billion UAL — a number that is more than three
times the PERS-stated UAL of $8.1 billion!
QUOTE: “Oregon
presumes a 8.00% return rate on its pension investments.[9] Oregon's public
pensions achieved a 14% return in fiscal year 2012. Its five year return is
just 3%, however, due largely to poor returns in 2008.[13]”
>> COMMENT: Anyone who knows anything at all about
at-risk investments knows that only a fool would ever presume “a 8.00% return rate on its pension
investments” — Oregon is a fool! Consider: “Its five
year return is just 3%.”
Screaming ouch! The pension
money burn rate that was suffered over the recent five-year 3% return time-span
might have alone made any future recovery simply impossible outside of PERS
scoring very big on the most risky of high-risk gambling bets, which is not how
pension funds are supposed to manage their fiduciary obligations to
retirees. But the bond market is
dead, and the share price of longtime high-flying Apple Computer stock (AAPL)
recently dropped from a September 2012 High of $705.07 to a April 2013 Low of
$385.10 — and the bottom might be a lot lower before the stock price
stabilizes. The truth is: the
stock market is a high-stakes casino where very shrewd people play a very
wicked game in which the winners are very happy to take the losers’ money. The 1990s Bull Market is not coming
back anytime soon if ever at all in the next 30 years. PERS cannot afford to ramp up its
tolerance for risk out of a desperate fear of not being able to reach its presumed
annual 8.00% return rate. The
investment game has to be played calmly and prudently, especially when the
markets are as difficult as they are now.
Other states have similar problems. Read:
QUOTE: Key Findings
Retirement benefits provide a reliable source of
post-employment income for government workers, and they help public employers
retain qualified personnel. For states that have not been disciplined about
fulfilling their obligations, the financial pressure builds each year.
*
In 2000, just over half the states had fully funded pension systems. By 2006,
that number had shrunk to six states. By 2008, only four—Florida, New York, Washington and Wisconsin—could make that claim.
*
In eight states—Connecticut, Illinois,
Kansas, Kentucky, Massachusetts, Oklahoma, Rhode Island and West Virginia—more than one-third of
the total pension liability was unfunded. Two states—Illinois and Kansas—had
less than 60 percent of the necessary assets on hand.
>> COMMENT: The above quote is dated 2008. At the above “pewstates.org” source
link, a linked updated report dated 2010 is titled “Widening Gap.” Plainly, the unfunded pension liability
problem is nationwide, is significant, and is worsening. Therefore, though this petition is “for a redress of grievances on behalf of
the school-age children of the State of Oregon,” any action taken by the
federal courts in response to this petition will have very significant national
repercussions.
The following analysis was written by Oregon State
Representative Dennis Richardson as part of his March 1, 2013, newsletter
article: “PERS Crisis: OSBA Introduces Substantial
PERS Reform Bill.”
Richardson has been the representative for Oregon’s Fourth District in
the Oregon State Legislature since 2003.
He serves on the House Committee on PERS
Reform. He has been a practicing
attorney in Central Point, Oregon, since earning his law degree at the J.
Reuben Clark Law School at B.Y.U. in 1979.
Notice that Rep. Richardson now
pegs the UAL for PERS at “more than $14 billion” — a $6 billion increase from
the PERS-stated UAL mentioned above.
The hole is deepening.
QUOTE: “… Suffice it to say Oregon’s Tier 1 PERS plan is one of the most
generous retirement plans available anywhere. The PERS system currently has an unfunded liability of more
than $14 billion and state and local public employers must pay the PERS cost
increases from their budgets like they do all other debts. In the current two year budget (2011-13
biennium), our State, local governments and schools were required to pay $1.1
billion over and above their normal PERS costs; in the next two-year budgets (2013-15),
the PERS costs are set to increase by another $906 million, and then an
additional $678 million in the following biennium. (Click here)
What do these PERS increases mean to our schools,
communities and State in 2013-15?
To our schools, without PERS reforms $330 million will be
paid from school district budgets for additional PERS payments. Paying this
amount will cost school districts nearly 27 cents for every dollar of payroll.
Think of what this means for our children. If a school
needs five teachers, a 27% PERS payment for four of them would more than
consume the money needed to pay the fifth.
Specifically, consider the following realities:
The Beaverton School District’s PERS payments increased by
$24 million in 2011-13. After using reserves and making efficiencies in the
2011-12 school year, the additional PERS costs and other revenue shortfalls in
the 2012-13 school year resulted in 344 teacher positions being cut, the school
year was shortened by 5 class days, and class sizes were increased by 3 - 4
students. Looking ahead to 2013-15,
the Beaverton School District will be assessed an additional $29.5 million in
PERS payments.
For Salem-Keizer Public Schools, in 2011-13 its PERS
payments increased by $32 million.
PERS and other revenue shortfalls required Salem-Keizer to cut 426 staff
positions. Looking ahead to
2013-15, Salem-Keizer PERS costs will increase by an additional $32 million.
The list goes on.
The much smaller Medford School District’s PERS payments increased by $6
million in 2011-13 and it adjusted by using reserves and cutting 70 positions,
cutting 8 non-instructional school days, and Medford’s staff agreed to assume
their 6% employee contribution to PERS and teachers agreed to assume 7% of
their health insurance costs. In 2013-15 Medford is being assessed an additional
$6 million of PERS payments. …”
* END OF SYLLABUS *
One might ask, “What were they smoking when they wrote PERS
and made it law?” It is
loony. It is preposterous. It stands outside of all normal
reality. It defies any logic based
in, on, or even remotely nearby what rightly could be called “reasonable
expectations.” It is fairy dust,
pure and simple — the stuff of childhood make-believe.
Yet, in Oregon, PERS is law — indeed, a labor contract
legally recognized as law that obligates the State very specifically until the
last covered person dies maybe 50 years from now. Its proponents staunchly claim that PERS is an inviolable
contract that is wholly unbreakable short of the State of Oregon legally filing
for bankruptcy protections, and the Oregon State Supreme Court has thus far
agreed with that claim. I have
actually heard an ardent PERS proponent say with firm conviction that the State
of Oregon should be made to sell its public lands to raise the revenues needed
to fund PERS, which means: sell the Oregon Coast beaches from the Washington
border to the California border and all State-owned forests, waterways, and
rangelands. No kidding. Unbelievable.
In its thinking and ruling, the Oregon State Supreme Court
cites Article. I. Section. 10. [1] of the U.S. Constitution, which states: “No State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money;
emit Bills of Credit; make any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.” —
the key clause being: “No State shall
… pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of Contracts, …” Simple logic: if “No State shall … pass any … Law impairing the Obligation of Contracts,” then
any made contract must continue to exist and be enforced by the courts until
that contract naturally ends or otherwise completes according to the dictates
of that contract. Any first grader
who can read could understand that straightforward simplicity.
But a huge herd of elephants is being overlooked — in plain
sight, but overlooked — that is: nowhere in the U.S. Constitution and its
amendments is the Congress or the United States of America as a federal
government forbidden to impair “the
Obligation of Contracts.” That
means the federal courts, including the Supreme Court of the United States, can
and must impair “the Obligation of
Contracts” whenever a contract violates the U.S. Constitution, which is “the supreme Law of the Land.” Indeed, Article. VI. [2] of the U.S.
Constitution states: “This Constitution,
and the Laws of the United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.”
Oops. The elephants are
about to stampede.
The Fifth Amendment is one sentence long. It states:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.
According to Webster’s Dictionary, the word “sentence” is
defined as: “a grammatically
self-contained speech unit consisting of a word or a syntactically related
group of words that expresses an assertion, a question, a command, a wish, or
an exclamation, that in writing usually begins with a capital letter and
concludes with appropriate end punctuation, …” Therefore, the Fifth
Amendment is a “speech unit … that
expresses … a command” enforced four separate times by the word “shall” within the context of one “related group of words.” Furthermore,
the whole of it is as defining as any part of it.
The whole of it describes an abiding fairness that citizens
are entitled to receive, even if they are accused of crimes, even if they are
guilty of crimes. In America, a
person is presumed innocent until proven guilty. Furthermore, the government is not given license to be
careless, lazy, or sloppy about its work; indeed, it is required to be precise,
accurate, and correct the first time and every time when a citizen’s “life, liberty, or property” is at
stake. To be blunt: the government
is not granted forgiveness for its mistakes.
Within that whole is found the clause that pertains to PERS
money mismanagement: “nor shall private
property be taken for public use, without just compensation.” The authors of the amendment
could have stated precise limitations such as private land property (that is:
acreage), private real estate property (that is: land, buildings, and
improvements), and/or private material property (that is: cars, boats,
appliances, artworks, electronic devices, and other objects), but they chose to
state “private property” as an
all-inclusive description, meaning: “something
owned or possessed; the exclusive right to possess, enjoy, and dispose of a
thing: OWNERSHIP;” and/or “something to which a person has a legal title,”
according to Webster’s Dictionary.
Certainly, “something owned or
possessed” that comes with “the
exclusive right to possess, enjoy, and dispose of a thing” has to include
the most basic of all property, which is money. Every citizen who has even just one penny to his name should
be recognized as a citizen who has one penny of property — one penny that can
be possessed, enjoyed, and disposed of according to that citizen’s own
exclusive right.
Indeed, in
Goldberg v. Kelly, 397
U.S. 254 (1970), the U.S. Supreme Court ruling stated: Held: 1. Welfare benefits are a matter of statutory entitlement for
persons qualified to receive them, and procedural due process is applicable to
their termination. Pp. 397 U. S. 261-263 (http://supreme.justia.com/cases/federal/us/397/254/case.html
and http://supreme.justia.com/cases/federal/us/397/254/case.html#261). In other words, welfare checks
constitute
“property” under the
Fourteenth Amendment language:
“… nor
shall any State deprive any person of life, liberty, or property, without due
process of law …” — a direct and applicable parallel to the Fifth Amendment
language:
“… nor shall private property
be taken …” Specifically, Justice William J. Brennan Jr. wrote in the
Goldberg v. Kelly opinion,
“It may be
realistic today to regard welfare entitlements as more like ‘property’ than a
‘gratuity.’ Much of the existing wealth in this country takes the form of
rights that do not fall within traditional common-law concepts of property.”
Certainly, if a welfare check is legally defined as “property,” an earned
paycheck should share the same legal definition, as should any other legal
income from any source.
Therefore, the clause “nor
shall private property be taken for public use, without just compensation” takes
on the full weight of requiring “just
compensation” for taxations that fund “public
use,” whatever that “public use”
might be. Certainly, it requires
that taxations actually fund “public use”
of some sort, that no taxation of any sort would ever fund anything rightly
described as private use, and that one citizen’s property (money) would never
be ceded by the government to become another citizen’s property (money) unless
a plainly justifiable “public use”
was self-evident and was by itself a “just
compensation” to the citizen who had his/her “private property … taken for public use.”
Of course, the courts cannot possibly judge whether each and
every individual citizen received “just
compensation” in return for their taxes paid, for the benefits to society
granted by the “public use” of
government funding varies in its impact from citizen to citizen, sometimes
widely. Even so, the courts can
and must judge when it cannot be denied that the government has egregiously
failed to use taxations for “public use”
while also egregiously failing to grant any “just
compensation” at all to those taxed.
Such is the case with PERS — undeniably so!
PERS is simply this: the State of Oregon robbing Peter to
pay Paul through a death spiral mix of 1) higher taxation and 2) the stopping
of “public use” benefits previously
funded by lower taxation, with “Peter” being Oregon’s tax-paying citizens and
“Paul” being Oregon’s retired public employees. If #1 is not fully accomplished, then #2 is increased
to compensate while the death spiral continues unabated. PERS is a Ponzi-like scheme wrapped in
contract law that has succeeded by means of an open collusion throughout the
state government. It is
outrageous. It is criminal. Worse: it is unconstitutional.
The Fifth Amendment clause “nor shall private property be taken for public use, without just
compensation” must be rightly defined in its whole and in its parts. But the U.S. Constitution does not have
an official glossary. So I will
here reference common definitions that are available to every American citizen
in Webster’s Dictionary, and not uncommon definitions that are available to only
those lawyers who know how and where to dig deep into countless court rulings
to find subtle nuances glued together in layers of precedents written in
legalese. For surely Webster’s can
hold its own ground where the English language is concerned, even when lawyers
are involved.
In its whole, the definition of the clause must and does
reiterate the above stated definition of the whole Fifth Amendment: “… it describes an abiding fairness that
citizens are entitled to receive, even if they are accused of crimes, even if
they are guilty of crimes. …
Furthermore, the government is not given license to be careless, lazy, or
sloppy about its work; indeed, it is required to be precise, accurate, and
correct the first time and every time when a citizen’s life, liberty, or
property is at stake. To be blunt:
the government is not granted forgiveness for its mistakes.”
As a basic and fundamental Rule of Understanding, the U.S.
Constitution must have internal consistency within its sentences, its sections,
its articles, and its whole, including within its amendments, and that
consistency must be both intellectual and moral in its basis and both honorable
and patriotic in its fibers, for it is what defines America. And that internal consistency — and
only that internal consistency — is what makes possible the hope and the
actuality of an external consistency that can and will manifest in the ideals
and the behaviors of American society.
We are, in the final analysis, words on paper that inspire The American
Dream in our own people and in other people from throughout the world who want
to join with us. Unless those
words are true, unless we honor them in our own generation “with a firm Reliance on the Protection of divine Providence” and a
mutual pledge to each other of “our
Lives, our Fortunes, and our sacred Honor” in an unshakeable bond with
those who signed The Declaration of
Independence on July 4, 1776, nothing about our actions can be true. So we must believe; we must insist on a
consistency in our Constitution that holds its truth both internally and
externally; and we must live The American Dream as an imperative, a right, an
obligation, and a duty to our forebears, to ourselves, and to each other.
The term “private
property” is defined to include all private property, including money.
The term “public use”
is defined to not include private use when “one
citizen’s property (money) would … be ceded by the government to become another
citizen’s property (money).”
The term “public use” must
include some kind of actual public use — something available to at least a
general group of citizens in a direct-benefit way, like public schools for
schoolchildren. Furthermore, the
“actual public use” must be something that is happening real time in the
present, not something that happened years ago or something that is planned to
happen years in the future — “actual public use” must be something happening
now within the current fiscal year that directly benefits “all the people or the whole area of a … state” or a “community” within the state in a way “relating to business or community
interests as opposed to private affairs,” according to the Webster’s
Dictionary adjective definition of the word “public.”
Webster’s Dictionary defines the noun word “use” as: “the act or practice of employing something”
and/or “the privilege or benefit of using
something” and/or “the legal
enjoyment of property that consists in its employment, occupation, exercise, or
practice.” Also, “the benefit in law of one or more persons;
specifically: the benefit or profit of property established in one other than
the legal possessor” and “a legal
arrangement by which such benefits and profits are so established.”
Therefore, “public
use” in this case is the shared privilege of legal enjoyment of the
benefit of property (tax money) in
its employment, occupation, exercise, or practice among all the people of Oregon in a way “relating to business or community
interests as opposed to private affairs.” “Shared” is my word, but it is the correct word. At the nexus between the two separate
words “public” and “use” where the term “public
use” is created and where it finds its meaning there swirls a concept that
is inescapably present and ever dominating, and that concept is of something
shared — something “to partake of, use,
experience, or enjoy with others” according to Webster’s Dictionary. It cannot be otherwise. The very idea of “public use” demands that something is being shared “with others,”
which means: every individual person and the all-inclusive “others” that are
the “public” — by definition: “all the
people” of Oregon. Certainly, “public use” is not being accomplished
when no sharing is taking place, for “something shared” is what forms the very
essence of “public use.”
It is indisputably true that PERS funding in Oregon cannot
be rightly called a “public use” of “private property … taken for public use,”
because the tax money spent is not “something shared” among all the people of Oregon in a way “relating to business or community interests
as opposed to private affairs.”
Without question and without exception, the tax money spent to fund PERS
obligations only relates to the “private
affairs” of PERS recipients; it does not relate in any way to anything
else.
The preamble of the U.S. Constitution states:
We the People of the United States, in Order to form a
more perfect Union, establish Justice, insure domestic Tranquility, provide for
the common defence, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.
To “establish
Justice” is the shout-out that is echoed in the
concluding clause of the Fifth Amendment: “… nor shall private property
be taken for public use, without just compensation.” Webster’s Dictionary defines
“justice” as: “2 a : the quality of being just, impartial, or fair b (1) : the principle or ideal of just
dealing or right action (2) :
conformity to this principle or ideal : RIGHTEOUSNESS c : the quality of conforming to law.”
Understanding the term “just compensation” is key to understanding the Fifth Amendment, for justice — indeed,
righteousness — must be the outcome.
And the Lord said to
Moses, “You shall do no injustice in judgment; you shall not be partial to the
poor or defer to the great, but in righteousness shall you judge your
neighbor.” Leviticus 19:1,
15 (RSV)
The Bill of Rights, which includes the Fifth Amendment,
became part of the U.S. Constitution effective December 15, 1791 — almost 222
years ago, but just 4 years after the U.S. Constitution was signed on September
17, 1787. The first ten
Amendments, which together constitute the Bill of Rights, were written at a
time when every adult citizen still had a fresh memory of the American
Revolutionary War, which began on April 19, 1775, and ended on September 3,
1783. The horrors of war are bad
enough when the battles are fought in a distant foreign country, but are
excruciating when the battles are fought at your own front door and the
collateral damages include the destruction of your own property and the
civilian casualties include the wounding and death of your own innocent loved
ones. War is searing and visceral
when it is experienced at such close range, especially the cold-hearted
injustice and unfairness of it all.
Read the Bill of Rights through the eyes of a Revolutionary War survivor
and you will see plainly the truths and the rights that were fully intended in
its words.
It is telling to look at both sides of a coin. Webster’s Dictionary defines
“injustice” as: “1 : absence of justice :
violation of right or of the rights of another : UNFAIRNESS 2 : an unjust act — syn INJURY, WRONG, GRIEVANCE: INJUSTICE is the general term applying
to any act that involves unfairness to another or violation of his
rights.”
The term “just
compensation” finds its definition where the two words “just” and
“compensation” become an inseparable oneness. Webster’s Dictionary defines the adjective word “just” as: “1 a : having a basis in or conforming to
fact or reason : REASONABLE b archaic : faithful
to an original c : conforming to a
standard of correctness : PROPER
<~ proportions> 2 a
(1) : morally right or good : RIGHTEOUS
(2) :
MERITED, DESERVED <~
punishment> b : legally
right — as a synonym of the word “FAIR,” JUST
implies an exact following of a standard of what is right and proper; and as a
synonym of the word “UPRIGHT,” JUST is archaic for UPRIGHT and HONEST.” Webster’s Dictionary defines the word
“compensation” in this case as: “2 a :
something that constitutes an equivalent or recompense; specif : payment to an
unemployed or injured worker or his dependents b : PAYMENT, WAGES.”
Following the thread, Webster’s Dictionary defines the verb word
“recompense” as: “1 a : to give
compensation to : REPAY b : to pay
for 2 : to return in kind :
REQUITE — as a synonym of “PAY,” RECOMPENSE suggests due return in amends,
friendly repayment, or reward.”
Webster’s Dictionary defines the noun word “recompense” as: an equivalent or a return for something
done, suffered, or given : COMPENSATION.”
Again, the violated Fifth Amendment clause of the U.S.
Constitution states: “nor shall private
property be taken for public use, without just compensation.” Like as regarding the term “private property,” the authors of the
amendment could have stated precise limitations regarding the term “just compensation,” such as partial
just compensation or eventual just compensation, but they did not. The term “just compensation” in the clause must then be inclusive of
something full and complete and something now.
Therefore, the term “just
compensation” in the clause is defined as a full and immediate equivalent
in government services that are made available and provided to everyone equally
as a reasonable, proper, deserved, and legally right payment in return for
taxes paid by all. The term “just compensation” in this case would
never describe money being given to a select few who provided government
services in the past but who are not now providing government services in the
present, that is: government retirees.
The U.S. Constitution has descriptions within it that must
certainly be both literal and figurative, that is: the basis for moral equivalents. For example, Article. I. Section. 9.
[8] states: “No Title of Nobility shall
be granted by the United States: …” What is a “Title of Nobility” if it is not the creation of a special
entitlement that requires an ongoing funding of some sort by the tax-paying
public? How far is that removed
from the reality of PERS funding in Oregon? I submit: it is a moral equivalent. Another example is the Third Amendment,
which states: “No Soldier shall, in time
of peace be quartered in any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.” That amendment is from the Bill of
Rights (as is the Fifth Amendment), so the thinking of American Revolutionary
War survivors must be considered when interpreting its intent. Two words suffice in giving it meaning:
requisition and commandeer.
Webster’s Dictionary defines the word “requisition” as: “… 2 a : the act of formally requiring or
calling upon someone to perform an action
… 3 a : the act of requiring something to be furnished b : a demand or application made usu.
with authority: as (1) : a demand made by military authorities upon civilians
for supplies or other needs (2) :
a written request for something authorized but not made available automatically
…” Webster’s Dictionary
defines the word “commandeer” as: “1 a :
to compel to perform military service
b : to seize for military purposes
2 : to take arbitrary or forcible possession of.” “Houses” (read: people’s homes, barns,
farms, crops, livestock, and horses — their livelihoods and their very beings)
were requisitioned and commandeered at will by both the British military and
the American military during the Revolutionary War, and “We the People” were
still so mad about it more than eight years after the war ended that an
insistent demand for justice resulted in the Third Amendment. That is no small thing; indeed, it is a
very big thing. What is the
difference between having a “house” requisitioned or commandeered by the
military and having tax money requisitioned or commandeered by the State of
Oregon to fund PERS? Nothing. Both are blatant acts of confiscation
that violate the U.S. Constitution.
I submit: PERS funding in Oregon is the moral equivalent of what is
forbidden by the Third Amendment.
The point of the two exampled moral equivalents reiterates
the “basic and fundamental Rule of
Understanding” stated above, which is: “the
U.S. Constitution must have internal consistency within its sentences, its
sections, its articles, and its whole, including within its amendments, and
that consistency must be both intellectual and moral in its basis and both
honorable and patriotic in its fibers, for it is what defines America.” Any moral equivalents found in the U.S.
Constitution will serve to illuminate, validate, and confirm the correct
understanding of the intent of the rights granted throughout the document, for
truth is truth is truth or it is not true at all.
The simple truth is: PERS funding in Oregon is violating
certain rights that are granted to every American citizen by the U.S.
Constitution, and those rights cannot be denied to anyone, including
children. Though the language — “nor shall private property be taken for
public use, without just compensation” — suggests that only actual
taxpayers have an entitlement to any compensation, I argue that the
Constitution is not only a private contract between each citizen individually
and the government, but is also a public contract between all citizens
collectively and the government.
Truly, the United States of America is one for all and all for one in
its Constitution, and that is an inseparable oneness in every respect.
The spirit, the soul, the mind, and the heart of the public
contract made by the Constitution of the United States of America for its citizens
are found in the great words of The Declaration of Independence: “We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.” In those words
are lost something that must be found here, that is: the Rights to “Liberty and the pursuit of Happiness”
do not guarantee accomplishments, achievements, or material success of any
sort; they only guarantee the freedom to do what you want to do — to take
risks, that is: to win and to lose.
It is essential to understand that here and now because PERS does not
understand that at all.
PERS has a profound lie as its foundational assumption,
which is: there is no risk in risk-taking if you simply declare that assumption
in a contract, that you will somehow still have your shirt to wear even if you
lose it in a gamble, that a participant ribbon of any color has the same value
as the blue ribbon given to the winner.
A lie is still a lie no matter how you might restate it. The truth is: the stock markets of Wall
Street are not the Special Olympics, nor are they games in which no one keeps
score and everyone wins; they are ruthless, mean places where fortunes are made
and fortunes are lost. PERS lost.
Sorting out responsibility starts by identifying the
fiduciary — the “one that holds a
fiduciary relation or acts in a fiduciary capacity” according to Webster’s
Dictionary. Fiduciary obligations
are the legal obligations of trust or confidence placed upon those individuals
who manage other people’s money — in this case, those individuals who actually
make portfolio investment decisions for the PERS pension fund. If money is handled improperly,
recklessly, or foolishly by established legal standards, the fiduciary can be
held personally responsible if losses occur, even to the point of having to
cover the losses according to the requirements of fiduciary laws.
One thing is for certain, the citizens of Oregon are not the
PERS pension fund fiduciary and do not therefore have fiduciary obligations of
any sort that would legally require them to cover the fund’s losses. The citizens of Oregon could choose by
their own choosing to cover the fund’s losses out of the goodness of their
collective hearts, but they cannot be legally compelled to do so under any
circumstance. Indeed, the citizens
of Oregon have every right to stand clear of the train wreck as PERS suffers
through whatever losses eventually happen, even if it is a complete loss of all
funds.
A labor contract must limit itself to the agreed dispersing
of real and actual money, and not in any way ever rely on imaginary money —
wished-for money — that might or might not appear at some later date. There can be no play money involved in
a final agreement; the money on the table must really exist and be fully
accessible to be moved and spent according to the signed contract’s
specifications. It is unthinkable
to even imagine otherwise, to be utterly daft and wholly irresponsible. Yet the PERS contract must have been
contrived in a place where unthinkable thoughts were acceptable and
commonplace, for those who made the contract somehow agreed to spend money that
they did not have and could not have except through robbery.
Unfortunately, because of the wrong-headed notion that a
labor contract between public employees and the State of Oregon somehow
supersedes the Constitution of the United States of America and because of
collusion in that notion all the way up through the Oregon Legislature (whose
representatives and senators can be and mostly are PERS recipients) and the
Oregon Supreme Court (whose justices are PERS recipients), an ongoing
so-far-successful robbery of Oregon taxpayers has been going on for many years
now, and it is safe to say that multiple billions of dollars have been stolen
to date — yes, billions! In the
SYLLABUS, a recent article written by Oregon State Representative Dennis
Richardson included the following: “…The PERS system currently has an unfunded liability of more
than $14 billion and state and local public employers must pay the PERS cost
increases from their budgets like they do all other debts. In the current two year budget (2011-13
biennium), our State, local governments and schools were required to pay $1.1
billion over and above their normal PERS costs; in the next two-year budgets
(2013-15), the PERS costs are set to increase by another $906 million, and then
an additional $678 million in the following biennium. …” By my
reading, that means: (2011-13 biennium) $1.1 billion + (2013-15 biennium) $2.0
billion + (2015-17 biennium) $2.7 billion = $5.8 billion over and above their normal PERS costs (read: money that needs to
be stolen from Oregon taxpayers).
Understand: the PERS problem has been a big and growing problem for at
least ten years, so the already stolen money must easily exceed $3 billion by
now.
(Then the LORD said to
Moses, “These are the laws you are to set before them:)
Whoever steals an ox or a sheep and slaughters it or sells it must pay
back five head of cattle for the ox and four sheep for the sheep.
If a
thief is caught breaking in at night and is struck a fatal blow, the defender
is not guilty of bloodshed; but if it happens after sunrise, the defender is guilty
of bloodshed.
Anyone
who steals must certainly make restitution, but if they have nothing, they must
be sold to pay for their theft. If the stolen animal is found alive in their
possession —whether ox or donkey or sheep— they must pay back double.
If
anyone grazes their livestock in a field or vineyard and lets them stray and
they graze in someone else’s field, the offender must make restitution from the
best of their own field or vineyard.
If a
fire breaks out and spreads into thornbushes so that it burns shocks of grain
or standing grain or the whole field, the one who started the fire must make
restitution.
If
anyone gives a neighbor silver or goods for safekeeping and they are stolen
from the neighbor’s house, the thief, if caught, must pay back double. But if
the thief is not found, the owner of the house must appear before the judges,
and they must determine whether the owner of the house has laid hands on the
other person’s property. In all cases of illegal possession of an ox, a donkey,
a sheep, a garment, or any other lost property about which somebody says, ‘This
is mine,’ both parties are to bring their cases before the judges. The one whom
the judges declare guilty must pay back double to the other.
If
anyone gives a donkey, an ox, a sheep or any other animal to their neighbor for
safekeeping and it dies or is injured or is taken away while no one is looking,
the issue between them will be settled by the taking of an oath before the Lord
that the neighbor did not lay hands on the other person’s property. The owner
is to accept this, and no restitution is required. But if the animal was stolen
from the neighbor, restitution must be made to the owner. If it was torn to
pieces by a wild animal, the neighbor shall bring in the remains as evidence
and shall not be required to pay for the torn animal.
If anyone borrows an animal from
their neighbor and it is injured or dies while the owner is not present, they
must make restitution. But if the owner is with the animal, the borrower will
not have to pay. If the animal was hired, the money paid for the hire covers
the loss.” Exodus 22:1-15 NIV
The Lord said to
Moses: “If anyone sins and is unfaithful to the Lord by deceiving a neighbor
about something entrusted to them or left in their care or about something
stolen, or if they cheat their neighbor, or if they find lost property and lie
about it, or if they swear falsely about any such sin that people may commit—
when they sin in any of these ways and realize their guilt, they must return
what they have stolen or taken by extortion, or what was entrusted to them, or
the lost property they found, or whatever it was they swore falsely about. They
must make restitution in full, add a fifth of the value to it and give it all
to the owner on the day they present their guilt offering.”
Leviticus 6:1-5 NIV
(Jesus said) “It is easier for heaven and earth to
disappear than for the least stroke of a pen to drop out of the Law.” Luke 16:17 NIV
The laws of restitution are ancient; indeed, they have been
part of Western Civilization since the Exodus led by Moses more than 3,400
years ago.
The law of the United
States differs from God’s Law in many ways, which is very well explained at:
http://www.gods-kingdom-ministries.net/teachings/books/gods-law-on-restitution/chapter-1/ But whatever differences might exist
between different legal systems, a constant is nonetheless always present, that
is: the victim wants justice — to have his/her stolen property returned and
then also to receive compensation for trouble and distress. Until the victim is satisfied, order
and goodwill will never be restored.
In current times, restitution
looks like this:
American gets back Nazi-looted art: Tom Selldorff, 84,
given back piece of his late grandfather's memory as France returns six of his
stolen family masterpieces
Associated Press — Published:
03.20.13
Oregon Law: § 137.106 —Restitution to victims
Copyright Infringement Penalties
The legal penalties for copyright infringement are:
1. Infringer pays the actual dollar amount of damages
and profits.
2. The law provides a range from $200 to $150,000 for
each work infringed.
3. Infringer pays for all attorneys fees and court
costs.
4. The Court can issue an injunction to stop the
infringing acts.
5. The Court can impound the illegal works.
6. The infringer can go to jail.
The more than $3 billion already
stolen from Oregon taxpayers by PERS is a lot of money. Add to that the hundreds (perhaps
thousands) of job layoffs that have occurred and the countless careers that
have been permanently derailed as a result of the ongoing robbery and what you
have is a whole lot of buried rage that will certainly surface now. Forgiveness is not a reasonable
expectation, especially in a state that is known for not being religious. So some sort of satisfactory
restoration must happen as an effective restitution for all.
But understand this: when
Representative Richardson wrote: “In the
current two year budget (2011-13 biennium), our State, local governments and
schools were required to pay $1.1 billion over and above their normal PERS
costs,” he was describing money that was cobbled together mostly by
redirecting existing tax revenues, thereby causing job layoffs (read: fewer
teachers), tuition increases, user fee increases, government services reductions,
park closures, shorter school years, and so forth — generally: doing
significantly less of everything that government does at the local, county, and
state levels, including public education from K-12 through the community
colleges and through the universities.
In other words, a $1.1 billion squeeze was done that pinched everybody
in some way. For example, the
first grader who had to share her teacher with more fellow students in a more
crowded classroom and therefore did not learn how to read because her teacher
did not have time to give her special attention. For example, the 20-year-old young man who had to drop out
of the university after his sophomore year because he could not afford the last
tuition increase. For example, the
crime victim who suffered an attack because someone was released from jail
early and who then lost his job due to his injuries. The many plausible examples fall far short of the countless
true stories that undoubtedly happened in every community in Oregon. Of course, increased taxes also helped “pay $1.1 billion over and above their
normal PERS costs,” but only as necessary after draconian cuts in
government services were done first.
Satisfactory restoration is
therefore not an easy fix. The
right thing to do should include full refunds to all current and former college
and university students of the tuition increase amounts they paid that were
necessary to fund PERS, and also an immediate rollback of tuition to a level
that only includes “normal PERS costs”
should happen. Additionally,
any tax increases that were ever implemented by any level of government to
cover costs “over and above their normal
PERS costs” should be immediately cancelled and full rollbacks should
occur.
Certainly, no public school
district in Oregon should be allowed to spend even one penny “over and above their normal PERS costs” under
any circumstance, not even if the teachers and administrators want it. It must be permanently
established that the money spent in a labor contract is only for services
rendered during the duration of that contract, that nothing at all carries
forward as a continuing obligation, and that what is agreed upon in a contract
represents and actually is sufficient and full payment for all services that
will be rendered during the time of that contract, no matter what. Furthermore, deferred payments of any
sort should be forbidden in individual employment contracts with high-paid
executives, administrators, and coaches who are PERS-eligible unless the entire
deferred amount is fully funded at the time of the contract signing. The State of Oregon should never be
allowed to spend money that it does not have by somehow contractually
establishing an unfunded financial obligation for a future generation.
The PERS defined benefit pension
cannot receive funding from the State of Oregon more than the normal funding
agreed to by the current contract.
It must be understood that the citizens of Oregon are paying for current
services only, and not for any services that were rendered years (even decades)
ago. What happened in the past is
this: at each contract, a portion of the then available actual money was placed
into a pension fund by agreement, and none of that actual money was a
promissory note of any sort — it was real money. That money was invested, and the increase or decrease of the
pension fund’s value thereafter was due to investment returns, the ongoing
addition of normal PERS contributions by the State of Oregon, and pension
withdrawals by PERS retirees. It
can only be that way. If the State
of Oregon ever withheld normal contributions to PERS because the fund’s value
surpassed minimum funding requirements at the time, the State of Oregon should
rightly now pay into the fund any and all previously withheld amounts, but not
one penny more. The PERS contract
payout scheme is wholly irrelevant if it does not now have 100% funding to meet
its obligations. At the very
least, the citizens of Oregon are in no way responsible for the current
shortfall in funding, and have no obligation whatsoever to restore any lost
funding by any extraordinary means.
Simply, the taxpayers of the State
of Oregon are entitled to receive full, ongoing, and immediate “just compensation” in “public use” government services for
every penny of their “private property”
taken through taxations and government fees, and that without any interference
at all from PERS. That simple
declaration is a constitutional right guaranteed by the Fifth Amendment to the
Constitution of the United States in conjunction with Article. VI. [2].
Critics will undoubtedly try to
link PERS with Social Security in some way, but there is no link between the
two. Social Security exists as a
retirement system in which everyone pays in and everyone is benefited. But PERS exists as a private pension
fund for public employees, a group that includes maybe ten percent (10%) of
Oregon’s population. It is
unreasonable to think that 90% of Oregon’s population is in any way responsible
for guaranteeing the performance of a pension fund that benefit’s only the
other 10%, even if that 10% are retired public employees. Certainly, PERS recipients would never
agree to personally contribute their own money to guarantee the performance of
failing pension funds that benefit workers in any of Oregon’s many private
industries, yet they have the temerity to demand that the citizens of Oregon
guarantee the performance of their own pension fund simply because they put
that obligation into the language of their contract.
One should not make a mess of
things unless one is willing to clean up, too. Others will determine the final outcome of this matter, but
I can here offer my solution.
If PERS recipients want to fight
amongst themselves until they solve their own problem of how to equitably share
what remains in their pension fund, let them fight.
If PERS recipients dare to ask the
citizens of Oregon for help of any sort, offer them help conditionally as long
as the conditions are strict, unbending, and harsh enough to solve the
problem. Understand this: if PERS
recipients ask for help, they should have no leverage whatsoever in determining
the outcome. By all accounts, they
deserve nothing more than what they have already received, and they already now
owe their fellow Oregonians a debt that they can never repay — literally
billions of dollars.
DO THIS: List every PERS recipient
now receiving a retirement income from top (highest PERS income) to bottom
(lowest PERS income). Establish
the exact median income level and then go up the list one spot, that is: median
+ 1. Drop the income of everyone
listed above “median + 1” to exactly the income of the PERS recipient at
“median + 1” and establish that drop in income as a permanent change. Everyone at or below “median + 1” would
suffer no loss in income. All PERS
recipients would have their income frozen at either “median + 1” or their
current income below “median + 1” until … maybe forever, and no new Tier 1 or
Tier 2 PERS recipient retirees would receive a higher income than “median + 1.”
No cost of living adjustment (COLA) would be granted until it was firmly
established that the pension fund could afford it with available money. If the pension fund is still in
financial trouble after three years, make another top to bottom adjustment by
establishing what the average PERS income is at that time and then dropping
everyone above that average income to exactly that average income as a
permanent change and as a cap income for all new Tier 1 or Tier 2 PERS
recipient retirees. Everyone below
the average income level would suffer no loss in income. Repeat the “average income” adjustment
after another three years if the pension fund is still in financial trouble and
keep repeating the same adjustment at the same time interval until either the
pension fund is fully funded and able to support itself or until the repeated
drops have placed all PERS recipients at the same income level. If it happens that all PERS incomes are
the same after repeated adjustments, permanently freeze the retirement incomes
at that level. Thereafter, if the
pension fund ever returns to good financial health, the State of Oregon should
recoup its losses by taking possession of any excess funds as they become
available.
The “median + 1” solution
guarantees that a majority of PERS recipients should be satisfied because they
would suffer no loss in income. Of
course, some PERS recipients from above “median + 1” will be furious, but that
cannot be helped. Any effort on
their part to make proportional adjustments or percentage adjustments should be
flatly rejected outright, because any such adjustments would be
catastrophically ruinous to those with the lowest PERS incomes.
The only possible complication I
would tolerate would be to honor length of service by making seven different
top-to-bottom listings instead of just the one described above. Those seven listings would be: 1) less
than 10 years service, 2) 10-14 years service, 3) 15-19 years service, 4) 20-24
years service, 5) 25-29 years service, 6) 30-34 years service, and 7) 35 or
more years service. If doing the
complication benefited those PERS retirees whose public careers lasted 20 years
or longer, then I would do it.
Otherwise, I would stick to the simplicity of one listing.
Those who object should consider what happened after
Bernie Madoff’s Ponzi scheme collapsed.
Consider:
http://online.wsj.com/article/SB124604151653862301.html
Many smart people — experienced
investors — got whacked pretty hard.
Some individuals were completely wiped out.
To reiterate from the SYLLABUS, I
wrote:
>> COMMENT: Translated, the above quote reveals
that PERS calculates according to its own economic and demographic assumptions
an unfunded actuarial liability (UAL) of $8.1 billion, but that three other
reputable and noteworthy sources have calculated the UAL for PERS according to
their own economic and demographic assumptions with startlingly different
results: PEW calculates a $10.7 billion UAL, Kellogg calculates a $37.8 billion
UAL, and AEI calculates a $42.2 billion UAL. Obviously, a prudent observer would conservatively conclude
that PERS is vastly underestimating its UAL. Indeed, a simple average of the four UAL numbers results in
a $24.7 billion UAL — a number that is more than three times the PERS-stated
UAL of $8.1 billion!
I then quote Oregon State
Representative Dennis Richardson who wrote:
… The PERS system currently has an unfunded liability of more than $14
billion and state and local public employers must pay the PERS cost increases
from their budgets like they do all other debts. In the current two year budget (2011-13 biennium), our
State, local governments and schools were required to pay $1.1 billion over and
above their normal PERS costs; in the next two-year budgets (2013-15), the PERS
costs are set to increase by another $906 million, and then an additional $678
million in the following biennium.
If no one knows what the PERS unfunded liability is and the
estimates vary dramatically and are increasing by multiple billions of dollars
as time passes, then stop the bus and get out if you can. If you have to, jump out! But PERS is a train wreck that is
already happening, and the damage that is plainly inevitable will be crushing. The choice is to let the State of
Oregon go bankrupt and then take that opportunity to disconnect from PERS or to
now lay claim to the rights and protections of the Constitution of the United
States as I have done above.
Oregonians are citizens of the United States, so we should demand the
rights and protections that we are entitled to as citizens — and that right
now!
Finally, some lawyer or judge or Justice will foolishly say
that the Fifth Amendment clause
“nor
shall private property be taken for public use, without just compensation”
is about “eminent domain,” and he/she will then smugly trot out what you can
read at
http://en.wikipedia.org/wiki/Eminent_domain
as if they won the war in doing so.
Well, read the U.S. Constitution front-to-back and then back-to-front as
many times as you want and you will never find the term “eminent domain” used
anywhere. The Bill of Rights,
which includes the Fifth Amendment, was written and ratified in 1791. The wikipedia article linked above
includes this excerpt: The term
"eminent domain" was taken from the legal treatise De Jure Belli et
Pacis, written by the Dutch jurist Hugo Grotius in 1625, which used the term
dominium eminens (Latin for supreme lordship) and described the power as
follows: "... The property of subjects is under the eminent domain of the
state, so that the state or he who acts for it may use and even alienate and
destroy such property, not only in the case of extreme necessity, in which even
private persons have a right over the property of others, but for ends of
public utility, to which ends those who founded civil society must be supposed
to have intended that private ends should give way. But it is to be added that
when this is done the state is bound to make good the loss to those who lose
their property."
What do we now know?
The term “eminent domain” was coined in 1625 as a legal term, and the
Bill of Rights was written in 1791 — 166 years later — by educated gentlemen
who were thoroughly schooled in the law.
Without a doubt, if the authors had intended to limit their intent to
the then already long-established legal concept of “eminent domain,” they would
have certainly used the term “eminent domain” to make their intent crystal
clear and indisputable. But they
deliberately chose to not do that.
Instead, they used specific language to open a door that is now finally
being fully opened in May 2013 by this petition “for a redress of grievances on behalf of the school-age children of
the State of Oregon who are suffering an unfair dismantling of their public
school education opportunities as a consequence of wrongful and illegal tax
money mismanagement by adults within the state government.”
But a surprise might be waiting. The wikipedia article linked above also includes this
excerpt: The
exercise of eminent domain is not limited to real property. Governments may
also condemn personal property. Governments can even condemn intangible
property such as contract rights, patents, trade secrets, and copyrights. Even
the taking of professional sports team's franchise has been held by the
California Supreme Court to be within the purview of the "public use"
constitutional limitation, although eventually, that taking was not permitted
because it was deemed to violate the interstate commerce clause of the U.S.
Constitution. Maybe others are already through the door. Maybe the doings of this petition will
not be difficult after all. God be praised. Hallelujah!
Finally, I believe in full disclosure if any self-interest
is involved. My self-interest
regarding PERS has to do with two amendments to the U.S. Constitution that I
proposed on December 12, 2011.
Those two amendments together would permanently restore to America the
blessings of full-employment economic vitality and best-in-the-world public
school funding. PERS is a job
killer of the first rank, and I will not allow it to ever suck even one penny
out of the potential of my two proposed amendments, which are:
Proposed Amendment XXVIII
Re: Article I Section 8. [3]
All multinational corporations or
enterprises, international corporations, transnational corporations, and
micro-multinational corporations with management headquarters located in a home
country outside of the United States shall be recognized as foreign Nations,
and shall be required to contract an Agreement with the United States Congress
before selling their goods and services in the United States or its
territories.
Proposed Amendment XXIX
Re: Article I Section 8. [8]
The United States shall have one
percent (1%) ownership of each and every copyright and patent issued and
registered by the United States government. The ownership shall be limited to
the pre-tax gross revenues generated by any and all uses of that which is
protected by U.S. copyright and patent law, and all such ownership shall be
without exception. All revenues earned from such ownership shall be used to
fund the free public education guaranteed to citizens by law, with all revenues
from patents supporting Science, Technology, Engineering, and Mathematics
education exclusively and all revenues from copyrights supporting either Arts
and Humanities education or Physical Education and Health education exclusively
according to the general categories that create the revenues (i.e.
computer-related patents support computer science education, music copyrights
support music arts education, sporting event copyrights support physical
education, and so forth).
Steven A. Sylwester
May 17, 2013
I used Webster’s Seventh New Collegiate Dictionary
(Copyright 1976) throughout.
* * *
POSTSCRIPT
Today is Pentecost, May 19, 2013, two days after I
personally hand-delivered the above petition to the District Court of Oregon
offices at the United States Courthouse in Eugene, Oregon. I am happy about what I did and am confident
about what the outcome will be.
However, it dawns on me: there was something I intended to include in my
argument that I did not include that is suitable for mention here.
Then Jesus said to
the Jews who had believed in him, “If you continue in my word, you are truly my
disciples; and you will know the truth, and the truth will make you free.” John
8:31-32 NRSV
Truth can make a person free if the person can simply know
the truth and believe it. In the
United States of America, what started out in 1787 as a constitution so concise
that it fits on 17 pages of a pocket-sized booklet in its entirety has now
ballooned — exploded — into a mass of laws so numerous, so complicated, and so
impenetrable that a whole good-sized multi-room library cannot easily contain
all of it. Plainly, normal people
— the common citizens — are no longer able to understand the laws that govern
them without having to pay an attorney more than $100 per hour for
guidance. That is no way to run a
country, especially when nearly all of the attorneys agree about nearly all of
the basics of the law — meaning: they all share the same blind spots.
What that speaks to is the
existence of monsters within the U.S. judicial system and its laws. Monsters are not new. In fact, they are everywhere. Each of us has one or two monsters
lurking about in our private lives in the forms of obsessive/compulsive
behaviors, bad habits, and/or strange superstitions that we will not violate no
matter what. Every organized group
has its monsters, and every hierarchy of any sort has a multitude of monsters,
especially every workplace and office.
Monsters are all of those things that matter even though they do not
matter at all to anyone except those who feed them. They are the policies, procedures, norms, understandings,
expectations, and goals that are truly nothing more than self-oppressions of
one sort or another. Yet we
believe in them and feed them as if they were real, and we are surprised when
we discover the truth that they are not real at all, that they are actually
imaginary in every respect.
What happens when you stop feeding
a monster is that the monster goes away; it simply vanishes. Poof! Just like that: gone.
PERS is a monster — a great big
monster! We feed it because we
think we must feed it. We fear
some bad consequence, so we feed it more, as if the dragon might attack us if
it is not pacified. We have gone
to the judges in the past and have asked, “Can we stop feeding the monster?”
and they have answered “No.” So
here we are gutless and scared, and still feeding PERS, Oregon’s imaginary
monster.
I say: forget about even trying to
make sense out of whatever might be buried somewhere in a law library. Instead, go back to where the truth can
be found, and then continue in that particular word — that scripture known as
the Constitution of the United States, including its amendments. Believe. Be a patriot.
Get a Webster’s Dictionary and find the truth you seek — the truth that
will make you free. That truth —
the truth that will forever kill the monster known as PERS — can be found in
the Fifth Amendment.
If there is a secret to the how
and why of my thinking, it can be found in reading my comment (the eighth
comment) after the article at the following link. That comment reveals the story of how I came to write the
two proposed amendments to the U.S. Constitution that I included in the
self-interest disclosure at the end of my petition.
God be praised! Amen
Steven A. Sylwester
May 19, 2013
