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Associated Press
Attendees of the Detroit General Pension board meeting wait to meet July 10. Detroit emergency manager Kevyn Orr is meeting with city retirees, a key group that is being asked to endure huge cuts in benefits and health insurance as Orr weighs whether to make Detroit the largest city in the U.S. to ever declare bankruptcy.

Detroit bankruptcy tests state pension protections

As the once-proud city of Detroit humbles itself in bankruptcy court, its financial future may hinge on this key question: Is the city obliged to its past? Or can Detroit renege on its promises to thousands of retirees for the sake of its present city services?

The legal question at the heart of Detroit’s bankruptcy filing has never definitively been answered by the nation’s highest courts. But it could become increasingly important as cities from coast to coast are grappling with shortfalls in pension funds that left unchecked could force cutbacks to police, firefighters and other essential city services.

A federal judge overseeing Detroit’s bankruptcy case is to hold his first hearing Wednesday, as Detroit spars with its employees over whether state lawsuits from pension beneficiaries can proceed.

Some cities, like Detroit, are located in states where pension benefits are guaranteed in full according to state constitutions, statutes or court precedent. Yet Detroit’s emergency manager is asserting that those guarantees go away in federal bankruptcy court, leaving retirees in the same pool as numerous other creditors who may get mere cents for each dollar owed.

“There’s not a lot of previous case law that tells us what’s going to happen here,” said Paul Secunda, a Marquette University law professor who specializes in labor and benefits issues.

“It’s not just an issue of bankruptcy law and pension law, it’s also an issue of federalism,” Secunda said. “Can a federal bankruptcy court basically ignore a state constitutional provision and allow a city like Detroit to ignore its previous promises concerning public employee pensions?”

The question matters because pensions pose a major liability for states, counties, cities, schools and other local governmental entities. A report released earlier this year by the Pew Charitable Trusts found that the nation’s largest cities had a combined pension shortfall of almost $100 billion and an even larger shortfall in retiree health-care benefits as the nation’s financial crisis peaked in the 2009 fiscal year.

Although municipal finances generally have improved since then, many local retirement plans remain on an unsustainable path, the Pew organization said.

Michigan Gov. Rick Snyder and Detroit emergency manager Kevyn Orr contend that retiree benefits should be able to be trimmed along with other debts to restore the city’s finances. Detroit has about 21,000 retired workers who are owed benefits, with underfunded obligations of about $3.5 billion for pensions and $5.7 billion for retiree health coverage.

“There have to be concessions,” Orr said earlier this week.

But union representatives contend retiree benefits already have been earned and shouldn’t be part of the discussion in bankruptcy court.

“It’s essentially similar to salary – you just don’t reach inside somebody’s savings account and take their pay back, nor should you reach inside their pension and deny them their pension benefits,” said Steve Kreisberg, director of collective bargaining and pensions for the American Federation of State, County and Municipal Employees.

The legal arguments could center on two provisions of the U.S. Constitution – Article 6, which declares U.S. laws to be supreme; and the 10th Amendment, which reserves for states all powers not constitutionally delegated to the federal government.

Laws governing local public employee pensions are one of those areas left to state control.