Peterson v. Fire and Police Pension Ass'n

Decision Date22 May 1986
Docket NumberNo. 85CA1000,85CA1000
Citation725 P.2d 81
PartiesPatricia Dyer PETERSON and Constance Preble, Plaintiffs-Appellants, v. FIRE AND POLICE PENSION ASSOCIATION, Police Pension Relief Board, Mike Licht, Auditor, and the City and County of Denver, Defendants-Appellees. . I
CourtColorado Court of Appeals

Brauer & Buescher, P.C., Ellen M. Kelman, Thomas B. Buescher, Denver, for plaintiffs-appellants.

Tallmadge, Tallmadge, Wallace & Hahn, P.C., C. Thomas Bastien, John W. Smith, III, Denver, for defendant-appellee Fire and Police Pension Ass'n.

Stephen H. Kaplan, City Atty., Darlene M. Ebert, Asst. City Atty., Denver, for defendants-appellees Police Pension Relief Bd., Mike Licht, Auditor, and City and County of Denver.

KELLY, Judge.

Plaintiffs, Patricia Peterson and Constance Preble, appeal the judgment of the trial court dismissing their action against the Fire and Police Pension Association (Association), the Police Pension and Relief Board (Board), Mike Licht as Auditor of the City and County of Denver, and the City and County of Denver, in which they sought a declaratory judgment that they are entitled to survivors' benefits not only under § 31-30-1001, et seq., C.R.S. (1985 Cum.Supp.) (State Plan) but also under the Denver City Charter. Alternatively, they sought a declaration that the State Plan is unconstitutional as applied to them, and as such, does not preempt their benefits under the Denver Charter. Plaintiffs here contend that the trial court erred, first, in holding that plaintiffs are not entitled to both sets of benefits, and second, in ruling that the Board's application of the State Plan is constitutional as applied to them, entitling them only to benefits under the State Plan. We affirm.

Plaintiffs are both widows of officers of the Denver Police Department. At the time their husbands were hired, the Denver City Charter provided for benefits to be paid to surviving spouses of any member of the police department in the amount of one-third of the salary "then or thereafter paid to active members of the department for services in the rank held by such member" at the time of his death. Denver City Charter C5.42. The State Plan does not contain such a "rank escalator" provision, and both plaintiffs would receive substantially lower benefits under the State Plan than under the Denver City Charter. See § 31-30-1008, C.R.S. (1985 Cum.Supp.).

Plaintiffs' husbands died after the effective date of the State Plan. Plaintiffs applied to the Association for benefits pursuant to the State Plan and for benefits pursuant to the Denver City Charter. The Association approved benefits under the State Plan only, and plaintiffs have since been receiving benefits thereunder.

I.

Relying upon the Denver City Charter C5.43-6 which provides that benefits under the Charter shall be in addition to, and not in lieu of, benefits that may be provided by any state compensation act, plaintiffs contend that they are entitled to survivors' benefits under both the State Plan and the Denver City Charter. We disagree, and hold that the provisions of the State Plan preempt those of the Denver Charter.

The general assembly, in pervasive legislation, sought to relieve municipalities of some of the costs of providing pension plan benefits. Section 31-30-1001, C.R.S. (1985 Cum.Supp.). With regard to death and disability benefits specifically, the moneys thereby provided to municipalities constitute a continuing obligation of the State to participate in the normal costs of pension plan benefits. See § 31-30-1001. It is evident from the statutory scheme that the intention of the general assembly in enacting the State Plan was to preempt the benefits provided to plaintiffs under the Denver City Charter; it was not the intention of the general assembly to pay state benefits in addition to the Denver City Charter benefits. The payment of State Plan benefits in addition to those provided by the Denver City Charter would disserve the basic purpose of the legislation which is to relieve communities of the intolerable financial burdens they would otherwise face in connection with their pension plans.

The general assembly has prescribed that statutes shall be liberally construed in order that the true legislative intent may be carried out. Section 2-4-212, C.R.S. Moreover, our interpretation is buttressed by the mandate that the public interest must be favored over any private interest. Section 2-4-201, C.R.S. Accordingly, we hold that plaintiffs are not entitled to benefits under the Denver City Charter in addition to those provided by the State Plan.

II.

The plaintiffs contend alternatively that, if they are not entitled to recover dual benefits, they are at least entitled to the greater benefits available under the Denver City Charter. Relying on Colo. Const. art. II, § 11; Police Pension & Relief Board v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959); and Police Pension & Relief Board v. Bills, 148 Colo. 383, 366 P.2d 581 (1961), the plaintiffs insist that they are suing to enforce their husbands' rights under the Denver City Charter which had vested prior to the adoption of the State Plan, and that the State Plan constitutes an unconstitutional impairment of the obligation of contracts as applied to the plaintiffs. They are not suing, they argue, to enforce their own survivors' rights which admittedly did not vest under the Denver City Charter until after the effective date of the State Plan.

If the enforcement of their deceased husbands' rights is indeed the thrust of the plaintiffs' case, they have given no reliable indication of it in their treatment of this lawsuit. Although the plaintiffs argued this theory strenuously in the trial court, as they do here, the pleadings do not reflect this theory of recovery, and it is by no means clear that the rights of the deceased officers under the Denver City Charter would survive after the officers' deaths. See § 13-20-101, C.R.S.; Dohaish v. Tooley, 670 F.2d 934 (10th Cir.1982), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63. We express no opinion on this issue. However, even if we assume the survival of...

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3 cases
  • Peterson v. Fire and Police Pension Ass'n
    • United States
    • Colorado Supreme Court
    • 18 Julio 1988
    ... ... As Modified on Denial of Rehearing ... Aug. 22, 1988 ...         Brauer & Buescher, P.C., Thomas E. Buescher, Ellen M. Kelman, Denver, for petitioners ...         Tallmadge, Tallmadge, Wallace & Hahn, P.C., C. Thomas Bastien, Denver, for respondent Fire and Police Pension Assn ...         Stephen H. Kaplan, City Atty., Darlene M. Ebert, Asst. City Atty., Denver, for respondents Police Pension Relief Bd., Mike Licht, Auditor, and the City and County of Denver ...         ERICKSON, Justice ...         Petitioners Patricia Peterson and Constance ... ...
  • Mesa Sand & Gravel Co. v. Landfill, Inc.
    • United States
    • Colorado Supreme Court
    • 26 Junio 1989
    ... ... Supply Co. v. Adolfson & Peterson, Inc., 765 P.2d 1079, 1081 (Colo.App.1988). Statutes ... ...
  • City of Aurora v. Ackman
    • United States
    • Colorado Court of Appeals
    • 26 Febrero 1987
    ... ... less, having a regularly organized volunteer or paid fire department. See § 31-30-401, et seq., C.R.S. (1986 Repl ... His monthly pension was to be equal to fifty percent of the amount of his ... 108, 512 P.2d 632 (1973); Peterson v. Fire & Police Pension Ass'n, 725 P.2d 81 (Colo.App.1986) ... ...

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