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Friday, May 30, 2008

Frail Grasp On the Big Picture

Several different interpretations of the Kantor rulings have surfaced. The first, which I reprint here, was sent by Aruna Masih, one of Hartman's partners, to all of the plaintiffs in the Arken case. In it, she gives her take on what happened and what the next steps will be. She writes:

" As you will recall, in last year's decision, Judge Kantor found in favor of you and Robinson petitioners, but on grounds we did not raise. Therefore, we asked Judge Kantor to clarify this decision, asking him to rule specifically on the main claim we did raise on your behalf, which was that you have a contractual right to keep the 20 percent earnings because in the Strunk case, the Oregon Supreme Court held that the 2003 Legislation created a new entitlement to a fixed retirement benefit based on the 20 percent earnings plus COLA. Also, we alleged that even if you did not have a contractual right to keep the 20 percent earnings, you retired in reliance on the fact that your retirement benefit would be based on the 20 percent earnings plus COLA and that reliance was reasonable.

In yesterday's decision, Judge Kantor ruled against us on that breach of contract and reliance (promissory estoppel) theory. Therefore, the contract claim will have to be decided by the appellate courts. While we are disappointed by the decision, we want to remind you all that we have always expected this case to be decided ultimately by the Oregon Supreme Court. We are busy researching ways to petition the Court of Appeals to certify the appeal directly to the Supreme Court so that you do not have to wait even longer for a final decision on this issue.

In the meantime, Judge Kantor's initial decision protecting all window retirees under the Section 14b reasoning still stands. We are certain Judge Kantor will be asked in the Robinson case to enter some judgment regarding that ruling within the next few months. We will keep you updated on the trial court's progress in the Robinson case as well as the appellate progress in this case.
" (My thanks to Michael Arken for sharing this communication with me and for permitting me to post it here.)

In contrast, the PERS website has its interpretation of what went down in Tuesday's ruling. You can read it here. The document can be found in a link at the upper right corner of the blog under current news.

After reading both, you get to decide which of the two sides has the firmest grasp on the big picture, and which doesn't.

For more discussion and news on the Arken case, please stop by the PERS Oregon Discussion group (POD), which you can join by clicking on the Yahoo link on the left.

2 comments:

George said...

At the risk of angering readers of this blog, I hope that you all recall my advice of about a year and a half ago which suggested that removing the phony "collection" action to Federal Court would be quick, effective and relatively painless.

Of course, Judge Kantor also nixed the collection action, but now his re-affirmation of it's impropriety will be appealed at least twice, and maybe eventually to the SCOTUS.

Had this action happened in Federal court as a complaint of violation of the Fair Credit Collection Act, the appeal would have been limited to the facts, and PERSB would have been very reluctant to continue appeal, since doing so might have opened up their entire sham action to a Federal prohibition of further action.

Furthermore, had this action been in Federal court, provisions for penalties could have been IMMEDIATELY enforced against the PERSB, and the likely result of THAT would have been a new PERSB.

We geezers are champions at one thing for sure: we really know how to trip on our collective Richards.

Bah!

mrfearless47 said...

Unfortunately, in my conversations with several of the attorneys involved in this case, the FCCA does not apply to PERS. All wage claims and credit collections involving a state agency MUST go through state and county courts. Apparently the Feds have no jurisdiction. That is why spouses who avoid spousal and/or child support go through state courts and/or the Department of Revenue rather than federal court. This is a state matter.