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Friday, April 11, 2014

Tumbling Dice

The Special Master hearings in the Moro et al consolidated cases (SB 822 and SB 861) are due to conclude today, if they haven’t already.  As a result of circumstances beyond my control (taxes, travel, crises), I wasn’t able to attend any of the hearings; however all of the pleadings, briefs, and responses are posted on the web page of the Bennett, Hartman PERS site (here).  There is a remarkable deja vu about the pleadings, especially those concerning the COLA changes incorporated in SB 822 and SB 861.  Besides the historical argument, new to the briefs this time around, there is an extensive discussion of what the court actually concluded in its 2005 Strunk decision on the Legislative reforms of 2003.  The state’s response is also predictable, denying certain facts as facts, arguing that the plaintiffs are trying to present as facts, legal conclusions.  The back and forth between the parties is so much like the Special Master hearings in 2004 that just reading the different parties arguments makes me feel like I’ve been teleported back to 2004.

The arguments over the income tax subsidies for out of state retirees is all new.  The crux of the argument revolves around the Hughes case (1991), the adoption of HB 3349, and what the legislative intent of SB 651 (1991) was.  This could be a trickier legal battle than I thought it might have been in the past.

The Special Master will digest all this material and present his report to the Oregon Supreme Court on or before April 30, 2014.  Once the report is available, I will provide a link to it from here.  Do recall that the Special Master report is simply another piece of evidence used by the Supreme Court in formulating its rulings.  The justices are not obligated to use any or all of the report; they may reject some findings, accept others, and completely ignore still others.  

Stay tuned as we play out this craps game on the legal felt in Portland and Salem.

2 comments:

mpguy said...

I have a question that I'm sure is on the mind of many PERS retirees. How much of the SC's findings will hinge on politics and what the court perceives is in the best interests (or convenience) of the State (reducing payouts in order to fund various other programs), as opposed to precedent and "the law?"

I know that the SC has wide discretion, but how likely are they to pretty much ignore decisions (including their own) in past cases?

mrfearless47 said...

Probably as much as they played in the 2005 Strunk case. Recall that the "poor pitiful me" argument presented in 2004 as part of the state and local government defense went nowhere in 2004, and the economic situation back then was worse than it is today. The court has to be careful if their ruling goes against established rulings from prior court cases. The decisions will have to be carefully wrapped in a bag of legal jumbo jumbo so that the claim of political influence can't be made obviously.

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