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Monday, January 20, 2014

Time Without Consequences

The Oregon Supreme Court has published its schedule for the Special Master hearings and for the oral arguments in the cases involving SB 822 and SB 861.  These cases pertain to the PERS retiree COLA and the legislation involving the out-of-state subsidy for Oregon Income Tax.  To make things as clear as possible, there is no litigation that I am aware of involving HB 3349, the 1995 legislation that provided retirees with a direct income tax subsidy for Oregon income taxes for work performed prior to October 1991.  The only litigation involves SB 656, passed in 1991, which provided a boost in PERS benefits to retirees based on length of service, not income and tax obligation.  

The Special Master’s status conferences were and will be held on January 10, February 14, and March 14, 2014.  The Special Master will take testimony from April 1 to April 11 on the evidence.  The Special Master’s report is due to the Supreme Court on April 30, 2014.  

Subsequently, the Supreme Court will begin Oral Arguments on the combined cases involving SB 822 and SB 861 in September 2014.

The final decision, as predicted, will occur sometime between 12 and 14 months from now.  This follows the pattern established by the 2005 Strunk Court in its ruling on the 2003 Legislative reforms.  Again, without an appellate court history, the Special Master’s role is to create a legal framework that the Supreme Court may use in its deliberations to reach a final decision on the constitutionality and legality of legislative actions taken in SB 822 and SB 861.  As I anticipated, the final decisions will be available to the 2015 Legislature, although it is unlikely that a decision will be available by the time the Legislature convenes.  Gov John Kitzrobber has claimed he will not put PERS issues back on the Legislative calendar regardless of the outcome of the consolidated Moro et al cases.  That, of course, depends on whether Gov Kitzrobber is reelected, a prediction that isn’t entirely certain at this point.  I certainly am not anticipating voting for him, but I won’t vote for his presumptive opponent either.

Sorry for the long delay between postings.  Between being far out of town, and attending to various family emergencies, I haven’t been paying as close attention to PERS issues as usual.  Things should improve as the legal machinations get moving.

7 comments:

rikester said...

Thanks for keeping us posted. I realize that it is not without personal sacrifice that you keep up this blog. A year from now I am looking forward to a large retro active payment when the supremes right the wrongs of the last legislative session.

mrfearless47 said...

Thank you for your understanding. I don't expect the wheels of justice to turn as quickly as you hope, because once the court pronounces its decision, say March 2015, it will be up to PERS and to the Legislature to figure out how to resolve the back payments. If the past is any guide, it won't come without additional legal battles. However, hope springs eternal that the back adjustments will simply come as normal and that PERS will use the August 2015 to clean up its books. I know, wishful thinking, but whatever.

Paula Burkhart said...

Thank you so much for updating us on these legal actions. It means a lot to those of us who have been retired for some years now and live out of Oregon. This action is another outrage on the middle class and makes me very happy I no longer contribute to the budget of Oregon (except through these illegal actions, of course!).

Thomas Carlyle said...

I have myself performed a review (necessarily cursory, incomplete, and inexact as I am not an attorney) of relevant case law and the precedents that apply to retroactive modification of public pension benefits, and the clear implications of case law are that courts will permit a modification of benefits that change the original terms of benefits, but will not permit a recission of benefits—the “hold harmless” principle of federal decisions on cases involving retroactive modification of benefits. This is a principle that is still being litigated—essentially on the margins, I believe, in the view of the courts—in the state of Oregon, the best red-state, blue-hearted dominion in the land. Ultimately, it seems likely to me that the new provisions, especially that entailing a truncation of the COLA for PERS retirees, will be rejected ultimately by the Oregon Supreme court. The case law is unambiguous on this point.
Which raises perhaps an interesting question as pertains to the state’s presiding executive, the man called “Kitzrobber” among the posts in this blog: Did he KNOW the case law and yet blunder on ahead to mollify his friends and supporters among the “ownership class” by promoting measures that patently entailed their own ultimate rejection by the courts, blind all the while to every factor but immediate political expediency? Or was he all along playing “the long game,” appearing to give the forces of rapine and reaction what they clamored for, all the while knowing that they wanted ice cream sundaes delivered to Hades—the impossible and impermissible—essentially lulling the stooges with a stalling tactic whilst he prepared his campaign for a fourth term as gov?
Inquiring minds want to know.

Thomas Carlyle said...

I have myself performed a review (necessarily cursory, incomplete, and inexact as I am not an attorney) of relevant case law and the precedents that apply to retroactive modification of public pension benefits, and the clear implications of case law are that courts will permit a modification of benefits that change the original terms of benefits, but will not permit a recission of benefits—the “hold harmless” principle of federal decisions on cases involving retroactive modification of benefits. This is a principle that is still being litigated—essentially on the margins, I believe, in the view of the courts—in the state of Oregon, the best red-state, blue-hearted dominion in the land. Ultimately, it seems likely to me that the new provisions, especially that entailing a truncation of the COLA for PERS retirees, will be rejected ultimately by the Oregon Supreme court. The case law is unambiguous on this point.

Which raises perhaps an interesting question as pertains to the state’s presiding executive, the man called “Kitzrobber” among the posts in this blog: Did he KNOW the case law and yet blunder on ahead to mollify his friends and supporters among the “ownership class” by promoting measures that patently entailed their own ultimate rejection by the courts, blind all the while to every factor but immediate political expediency? Or was he all along playing “the long game,” appearing to give the forces of rapine and reaction what they clamored for, all the while knowing that they wanted ice cream sundaes delivered to Hades—the impossible and impermissible—essentially lulling the stooges with a stalling tactic whilst he prepared his campaign for a fourth term as gov?

Inquiring minds want to know.

Bootsie Rose said...

In reqard to to the out of stae "take back" of the Orgon tax benefit. I hope there is a class action. I still by mt insurance through PERS and I still have the credit union From Oregon Iuse and have direct deposit.I am using Oregon Services and therefore providing revenue to the state.I could use some help as I left to take care of my Mother who eventually died of pancreatic cancer.My health failed,I "lost" friends,I barely make the amount to be required to pay Oregon state taxes.I would truely like some help on an approach to this. I was just a general employee,got to the last step and never got more wages. Now I live on just minimal SSN and PERS,but I still contribute to the state of OR.How do I get in touch with this lawyer handling appeals?

mrfearless47 said...

Bootsie: the PERS Coalition is handling the litigation against SB 822, which, in part, removes the out of state tax subsidies for retirees who live outside Oregon. If you want to contact them, send your note or call Greg Hartman or Aruna Masih at Bennett, Hartman, Morris, and Kaplan law firm in downtown Portland. You can link to their website from the front page of my blog, or the PERS Oregon Discussion group on google groups, also reachable through my blog.

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