
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br>No. 97-1946 <br> <br>             RHODE ISLAND LABORERS' DISTRICT COUNCIL, <br>                     LOCAL UNION 808, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                  STATE OF RHODE ISLAND, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>No. 97-1987 <br> <br>                     DAVID E. PERRY, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                  STATE OF RHODE ISLAND, ET AL., <br> <br>                      Defendants, Appellees. <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF RHODE ISLAND <br> <br>       [Hon. Francis J. Boyle, Senior U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>                 Bownes, Senior Circuit Judge, <br>                                 <br>                   and Boudin, Circuit Judge. <br>                                 <br> <br> <br>     Richard A. Fairbrothers, Regional Attorney, with <br>whom Darren F. Corrente, Regional Attorney, was on brief for <br>appellants Rhode Island Laborers' District Council, Local Union <br>808, et al. <br>     Miriam Weizenbaum with whom Amato A. DeLuca and DeLuca & <br>Weizenbaum, Ltd. were on consolidated brief for appellants David E. <br>Perry, et al. <br>     Thomas A. Palombo, Special Assistant Attorney General, State <br>of Rhode Island, Department of Attorney General, and Harris K. <br>Weiner, Deputy Executive Counsel to the Governor, on consolidated <br>brief for appellees State of Rhode Island, Governor Lincoln C. <br>Almond, General Treasurer Nancy J. Mayer, Attorney General <br>Jeffrey B. Pine, Director of Administration Robert L. Carl, Jr., <br>and Supreme Court Administrator Robert C. Harrall.  <br> <br> <br> <br> <br> <br>May 27, 1998 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  BOUDIN, Circuit Judge.  In 1976, Rhode Island adopted a <br>statute, entitled Court Clerks' Incentive Pay, providing salary <br>bonuses for state court clerks who obtained certain degrees.  1976 <br>R.I. Pub.  Laws ch. 205,  1, codified as amended at R.I. Gen. Laws <br> 8-4.1-1 to 8-4.1-5 (1997).  A 10 percent salary increase was <br>provided for a court clerk who obtained an Associate's Degree in <br>fields relating to law enforcement or administration of justice; a <br>Bachelor's Degree in such a field or any field suitable for <br>admission to an accredited law school was worth a 16 percent <br>increase. <br>  After almost 20 years, Rhode Island in 1994 amended the <br>statute to replace percentage bonuses with flat rate amounts:  <br>clerks receiving the 10 percent increase would instead receive <br>$2,000 yearly, and clerks receiving the 16 percent increase would <br>receive $3,200.  1994 R.I. Pub. Laws, ch. 125,  1, codified atR.I. Gen. Laws  8-4.1-3 (1997).  Clerks hired after July 5, 1994, <br>received no incentive pay.  Id., codified at R.I. Gen. Laws   8- <br>4.1-1.  The amendment provided that it would not take effect as to <br>clerks already receiving incentive pay until the expiry of <br>collective bargaining agreements then in force.  Id.  2, codified <br>at R.I. Gen. Laws  8-4.1-7. <br>  The amendment effectively reduced the salaries of the <br>clerks, in some cases by over $7,000 per year.  A group of clerks <br>sued Rhode Island and its officials in the district court, claiming <br>that the amendment was unconstitutional.  A similar claim was made <br>by the Rhode Island Laborers' District Council, Local Union 808 <br>("the union") which represented a number but not all of the court <br>clerks.  The union's complaint also charged that the amendment <br>abrogated its collective bargaining agreement with Rhode Island. <br>  The cases were consolidated before the district court, <br>which heard cross-motions for summary judgment on an agreed <br>statement of facts.  On July 24, 1997, the district court granted <br>judgment in favor of the state, rejecting the constitutional <br>attacks on the amendment.  The district court explicitly declined <br>to address a claim advanced by the union based on state collective- <br>bargaining law because it had not been briefed or argued by the <br>union. <br>  The clerks and the union now appeal, and we affirm, <br>primarily on the basis of the district court's decision.  No <br>detailed discussion of principles is needed because the pertinent <br>law relating to the Contracts Clause, U.S. Const. art. I,  10, the <br>main pivot of the appellants' argument in this court, has been set <br>forth in Parker v. Wakelin, 123 F.3d 1, 9 (1st Cir. 1997), cert. <br>denied, 66 U.S.L.W. 3717 (U.S. May 5, 1998) (No. 97-1181), and <br>McGrath v. Rhode Island Retirement Board, 88 F.3d 12 (1st Cir. <br>1996).  <br>  As Parker and McGrath explain, the first requisite for a <br>Contracts Clause argument is showing the existence of a contract <br>governing the subject in dispute.  Although federal rather than <br>state standards govern this issue, General Motors Corp v. Romein, <br>503 U.S. 181, 187 (1992), there is nothing recherch about the <br>criteria.  They may include not only the words used but also <br>apparent purpose, context, and any pertinent evidence of actual <br>intent, including legislative history.  No single form of wording <br>is essential in order to find a contractual relationship.  Cf.Parker, 123 F.3d at 9.  Further, "a statute is itself treated as a <br>contract when the language and circumstances evince a legislative <br>intent to create private rights . . . ."  United States Trust Co.v. New Jersey, 431 U.S. 1, 17 n.14 (1977).    <br>  Yet, while contracts between private parties are <br>sometimes inferred rather easily, see McGrath, 88 F.3d at 19, the <br>Supreme Court has for obvious reasons been more demanding where <br>legislative acts are claimed to create contracts binding future <br>legislatures.  Thus, the Supreme Court has said that such a <br>surrender of legislative authority must be expressed "in terms too <br>plain to be mistaken."  United States v. Winstar Corp., 116 S. Ct. <br>2432, 2455 (1996) (quoting Jefferson Branch Bank v. Skelly, 66 U.S. <br>(1 Black) 436, 446 (1861)).  This court has followed that precept.  <br>Parker, 123 F.3d at 5. <br>  What has been called the "unmistakability doctrine," <br>McGrath, 88 F.3d at 19, easily disposes of this case.  Ordinarily, <br>pay schedules for state employees can be altered at will by the <br>legislature.  The 1976 statute enacting incentive pay for court <br>clerks does not say in terms that it is creating contractual rights <br>or otherwise explicitly promise that incentive pay will never be <br>reduced or eliminated for clerks who obtained the degrees rewarded <br>by the statute.  Nor has any legislative history been unearthed by <br>the parties expressing the legislature's intention that incentive <br>pay be permanent and never subject to revision. <br>  The only scrap of evidence identified by the clerks is <br>the original statute's language "offering financial compensation <br>for clerks . . . for furthering their education."  R.I. Gen. Laws <br> 8-4.1-1 (emphasis added).  "Offer" is a term often used in <br>contract formation, but it is also a word of general usage and does <br>not alone convey an "unmistakable" intent to create a binding <br>contract.  It could be easily argued that the term "compensation" <br>connotes "salary"--normally subject to legislative adjustment-- <br>especially because the increase was not limited to the period <br>needed to recoup out-of-pocket costs of education.   <br>  Of course, a clerk with a specialized degree may be worth <br>more to the state, justifying payment of the educational bonus <br>after out-of-pocket expenses have been recovered.  But this view <br>makes the incentive pay look more like ordinary compensation <br>reflecting the employee's skill level, grade or seniority.  True, <br>there is seemingly an element of reimbursement as well--and <br>arguably some unfairness to any clerk who has not recovered his or <br>her costs.  But the commitment was not unmistakably contractual, <br>and that is the end of the matter under existing law. <br>     In the district court, the union also sought declaratory <br>relief based upon its collective bargaining agreement with the <br>state.  The collective bargaining agreement at issue included some <br>aspects of the statutory incentive pay plan (as well as other bonus <br>provisions not contained in the statute); to that extent, the <br>incentive pay of those clerks who were union members was <br>independently protected by the collective bargaining agreement. <br>     As already noted, the 1994 amendment at issue, <br>effectively reducing incentive pay for current clerks, stated that <br>it would not take effect as to clerks covered by labor contracts <br>until their collective bargaining agreement expired.  Thus the <br>statute was crafted to accommodate the agreement and not to <br>conflict with it.  The collective bargaining agreement contained an <br>expiration date of June 30, 1995, provided that one party gave <br>notice of intent to terminate.  The union does not dispute that the <br>state gave timely notice. <br>     However, there are a few references in the union's brief  <br>in this Court that could be read to suggest that the collective <br>bargaining agreement was somehow extended because assertedly one of <br>the negotiating lawyers wrote a letter on July 12, 1995, <br>representing that the state would maintain "the status quo during <br>negotiations."  Alternatively, the union may be suggesting that <br>Rhode Island's collective bargaining statute required the state to <br>continue to respect the terms of the expired agreement until an <br>impasse was declared or a new agreement negotiated.  These <br>suggestions may or may not be the same arguments that the district <br>court declined to address for failure to brief them. <br>     In all events, it is patent that the union's main brief <br>in this court does not seriously develop and support these further <br>arguments.  Any claims that the collective bargaining agreement was <br>extended beyond its expiration date require independent structure <br>and support.  The union's main brief contains nothing beyond terse <br>references and hints.  Under well-settled precedent, these further <br>claims are waived, and we decline to address them on the merits.  <br>United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, <br>494 U.S. 1082 (1990).  <br>     Affirmed.</pre>

</body>

</html>

