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AG Ellen Rosenblum #753239
SG A nna M . Joyce #013112
AAG Keith L. Kutler #852626
AAG Matthew J. Merritt # 122206
AA G M ichael A. Casper #062000
Oregon D epartment of Justice
1162 C ourt Street.NE.
Salem, OR 97301-4096
Telephone: 503-37-8-4402
Facsimile: 503-378-6306
anna.ioyce@doj. state. or.us
keith. kutler@doj . state. or. us
matthew. m erritt(~
,doi . state. or.us
Attorneys for State. Respondents
Harry Auerbach #821830
Kenneth A. McGair #990148
Office of the City Attorney
1221 SW 4`'' Avenue, Ste 430
Portland, OR 97204
Telephone: 503-823-4047
Facsimile: 503-823-3089
harry. auerbachgportlandoregon. go v
ken.McGair(~,portlaindoregon. gov
Attorney for Respondent City of
Portland
Eugene J. Karandy II #972987 .
Ofrice of County Attorney
Linn County Courthouse
104 SW Fourth Avenue, Room 123
Albany, OR 97321
Telephone : 541-967-3 840
F acsimile : 541-928-5424
gkarandyA co. linn. or. us
Attorney for Respondent Linn County
W illiam F. Gary #770325,
william.f.g_
ry@harran .
com
Sharon A. Rudnick#830835
Harrang Long'Gary Rudnick PC
360 E. 10 `'' Ave ., suite 300
Eugene, OR .97401
Telephone: -503-242-00.00:
Facsimile: 541-686=6564
Attorneys for Respondents Linn
County, Estacada, Oregon City,
Ontario, W est Linn School D istricts
and B eaverton School D istricts; and
Intervenors Oregon School Boards
Association and Association of
Oregon Counties
DanieJ B. A tchison #040424
Kenneth Scott Montoya #064467
Office of City Attorney
555 Liberry Street SE R m 205
Salem, OR 97301
Telephone: 503-588-6003
Facsimile: 503-361-2202
datchison(~,cityofsalem.net
Attorney for Respondent City of
Salem
Edward F. Trompk e #843653
Jordan Ramis PC
Tw o Centerpointe Drive, 6`
h
Floor
Lake Oswego, OR 97035
Telephone: 503-598-5532
Facsimile: 503-598-7373
ed. trompke(a~
j ordanramis. com
Attorney for Respondent Tualatin
Valley Fire and Rescue
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Lisa M. Frieley #912763
Oregon School Boards Association
PO Box 1068
Salem, OR 97308
Telephone: 503-588-2800
Facsimile: 503-588-2813
Attorney for Respondents Estacada,
Oregon City, Ontario, and West Linn
School Districts and Intervenor
Oregon School Boards Association
Rob Bovett #910267
Association of Oregon Counties
1201 Court St. NE Ste 300
Salem, OR 97301
Telephone: 971-218-0945
rbovett
e
aocweb.org
Attorney for Linn County
1Vlichael D. R eynolds (Petitioner Pro
Se)
8012 Sunnyside Avenue N.
Seattle, WA 98103
Telephone: 206-910-6568
Petitioner pro se
Sara K. Drescher #042762
Tedesco Law Group
3021 NE Broadway
Portland, OR 97232
Telephone: 866-697-6015
Attorney for Amicus Curiae IAFF
W. Michael Gillette #660458
Leora Coleman-Fire #113581
Sara Kobak #023495
William B. Crow #610180
Schwabe Williamson & Wyatt PC
1211 SW 5`
h
Ave Suite 1900
Portland, OR 97204
Telephone: 503 -222-9981
Facsimile: 503-796-2900
Attorneys for Intervenor League of
Oregon Cities
George A. Riemer (Petitioner Pro
Se)
23206 N. Pedregosa Drive
Sun City West, AZ 85375
Telephone: 623-238-5039
Petitioner pro se
Gregory A. Hartman #741.283
HartmanGgbennettthartman. com
Aruna A. Masih #973241
Bennett Hartman Morris
210 SW Morrison Street, Suite 500
Portland, OR 97204
Telephone: 5 03 -546-9601
Attorneys for Petitioners Moro,
Domenigoni, Custer, Hawkins,
Arken, Ditter, O'Kief, Smith,
Johnson, Clouseer, Silence,
Veckery, and Voek
Craig A. Crispin #82485
Crispin Employment Lawyers
1834 SW 58t h
Avenue, Suite 200
Portland, OR 97221
Telephone: 503-293-5759
Attorney for Amicus Curiae AARP
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Assignment of E rror No. 5 Petitioner Jones' contractual right to his full PERS
retirement benefit, including the pre-2013 COLA, was fulfilled when he retired;
they are not a windfall, a gratuity , or an ad hoc COLA as erroneously
alleged by Respondents and Intervenors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A.
Oregon case law affirms that Petitioner Jones' gave consideration for his
pre-2013 1egislation re tiremen t benefits . . . . . . : . . . . . . . . . : . . . . . . . . 20
B.
Intervenor League mischaraeterizes the CO LA which predates the 2013
legislation as
`ad hoc
. . . . 22
C.
Respondents and Intervenors erroneous characterization of Petitioner
Jones' pre-2013 contractual retirement benefits as a`windfall' or a
`gratuity' fails to recognize that upon his retirement, Petitioner
Jones'
right to his PERS contractual retirement benef ts were fully vested, and
the 2013 legislation resulted in a substantial iinpairment of those
rights 23
Assignment of E rror No. 6 State Respondent m isstates the facts in minimizing
the substantial impact of the removal of SB 656 and HB
3349 from Petitioner
Jones 24
Assignment of Error No. 7 Respondents and Intervenors are in error in
alleging Petitioner Jones must satisfy the criteria for a facial challenge ...... 26
Conclusion 26
Certificate of Compliance with Brief Length and Type Size
Requirements
Certificate of Service and Certificate of Filing
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iv
Taylor v. Multnomah County Deputy Sheriff's Retirement Board,
265 Or. 445 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
, 20-21
United Firefighters of Los Angeles C ity v. City of Los A ngeles,
210 Cal. App. 3 d 1095 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Washington, .872
F.2d 874 (9th Cir. 1989) . . . . . . . . . . . . . . . 2
Vogl v. Department of Revenue, 327 Or: 193 (1998) . . . . . . . . . . . . . . . . . 19-20
CONSTITUTIONS, STATUTES, AND RULES
ORS 238.360(1) (2001) . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 13
Or. Laws 1971, ch. 738 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 20, 22
Or. Laws 1973, ch . 695 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 14, 20-22, 24
Or. Laws 1995, ch. 569 (HB 3349) . . . . . . . . . . . . . . . . . . . . . . 16, 19-21, 24-25
Or. Law s 1991 , ch. 796 , (SB 656 ) . . . . . . . . . . . . . .. . . . . . . . . . . 5, 16-21 , 24-25
Or. Law s 2013, ch. 53 (S B 822 ) . . . . . . . . . . .' . . . . . . . . . . . 7-13, 15, 22-23, 26
Or. Laws 2013, ch 2(Special Session) (SB 861). ......... 7-13,
15, 22-23, 26
4 U .S.C . section 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TREATISES AND OTHER AUTHORITIES
Black's Law Dictionary, 6`
h
Edition, www.foavc.org . . . . . . . . . . . . . . . . . . . . . 2
Consumer Price Index, 1913--,The Federal Reserve Bank
of Minneapolis; minneapolisfed.org
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Glossary in the
Guide to Implementation of GAS B Statement 67
on Financial Reporting for Pension Plans, by the
Governmental Accounting Standards Board (June 2013) . . . . . . . . . . . 22
SPECIAL MASTER'S FINAL REPOR T AND RECONIlVIENDED
FINDINGS OF FACT, April 30, 2014 (SMR) . . . . . . . . . . . . . 12-14
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EXTENDED REPLY BRIEF
Introduction
Petitioner Jones, in this consolidated reply brief, will correct a number
of errors of fact and/or errors of law contained in the Answering Briefs filed
by State Respondents, County/School District Respondents, and Intervenor
League [collectively hereinafter referred to as `Respondents and
Intervenors'].
ASSIGN ME NT OF ER RO R N O. 1 In an effort to undermine clear
precedent which favors Petitioner Jones' position, Respondents and
Intervenors urge this Court to disavow or reject all or part of its
prior decisions which hold PERS members have a contractual right to
their PERS benefits, including the COLA.
Respondents and Intervenors insist this Court should disavow or
reject a whole line of Oregon Supreme Court cases which establish that
PERS members have a contractual right to their PERS benefits, alleging
these decisions are superficial, are full of errors, and did not contain
strict and methodical inquiry.
A. Respondents' and Intervenors' request to overturn prior settled
Oregon case law, runs roughshod over the principle of
stare
decisis
1
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3
language and legislative history of the challenged case and rejected the
suggested need for further clarification. This is exactly the situation here.
B. Respondents and Intervenors have failed to prove error in prior
Oregon Supreme Court holdings; and their assertion attempts to
undermine the Court's careful review in these prior cases.
Respondents and Intervenors have alleged, but failed to give any
substantive evidence that proves any errors in this Court's prior judgments.
The Oregon Supreme Court has repeatedly reviewed and consistently
afftrmed the contractual nature of PERS retirement benefits and of PERS
members' right to these benefits, including the 1973 COLA. The case
history on this point is clear.
Strunk v. Public Employees Retirement Board,
338 Or. 145, 108 P.3d
1058 (Or. 2005) is determinative on this issue. The Court held that the ORS
238.360(1)(2001) COLA was part of the contractual PERS retirement
benefit.
Like the tax provision analyzed in
Hughes, the text of ORS
238.360(1)(2001) evinces a clear legislative intent to provide
retired members with annual COLAs on their service retirement
allowances, whenever the CPI warrants such COLAs. We
therefore conclude that the general promise embodied in ORS
238.360(1)(2001) was part ofthe statutory PERS contract
applicable to the group of retired members affected by the 2003
provisions at issue here.
Id. at 221.
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Id. at 20.
The Court spent several pages detailing the legislative history which
justified its decision. The Court then stated:
Thus, by virtue of the terms of
the statutes, the legislative history, and our holdings that PERS is a contract,
the contrdctual intent of the legislature in this case has been decided. Id.
at
21 (emphasis added).
Reaching back further into Oregon's case law history, the Oregon
Supreme Court in
Taylor v. Multnomah County Deputy Sherifs Retirement
Board,
265 Or. 445 (1973), found that plaintiff established a contractual
right to participate in the pension plan. The adoption of the pension plan
was an offer for a unilateral contract. Such an offer can be accepted by the
tender of part performance.
Id.
at 455. In reaching its conclusion, the Court
stated: Oregon has joined the ranks of those rejecting the gratuity theory of
pensions and has held that contractual rights to a pension can be created
between the employee and employer. Id.
at 450. Taylor recited Oregon's
prior adherence to this principle in two earlier Oregon cases of
Crawford v.
Teachers' Ret. Fund Ass'n.
164 Or. 77, 99 P.2d 729 (1940), and also in
Adams v. Schrunk, 6
Or.App. 580, 488 P.2d 831,
rev. denied
(November
16,
1971). The
Taylor
court said: We conclude from the above authorities that
Oregon has adopted not only the contractual concept of pensions; but, also,
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(hereafter sometimes referred to as the.2013 legislation ), provide a
formula for a reduced annual cost of living adjustment, dubbed CO LA,
that is actually no longer based on the Consumer Price Index (CPI). The
original 1971 COLA required an annual adjustment, based on the CPI for
Portland, Oregon, of up to 1.5 percent in the m onthly allowance paid to
retirees. Oregon Laws 1971, chapter 738. This COLA `cap' was increased
from 1.5 to 2.0 percent in 1973. Oregon L aws 1973, chapter 695. Th is 1973
change was an enhancem ent from the 1971 COL A. This change was
accepted by the employees as a function of their continued employment and
was accepted by new hires when they joined the work force. In
Rose C ity
Transit v. City of Portland, 271
Or. 588 (Or. 1975), the Oregon Supreme
Court held that This court has held that the adoption of a pension plan is an
offer for a un ilateral contract.
Id.
at 592. And it noted that an employee
pension or disability plan may be v iewed as an offer to the employee w hich
may be accepted by the employee's coiitinued employm ent, and such
employment constitutes the underlying consideration for the promise.
Id.
at 593. Because the legislature in 1973 provided for a permanent 0.5%
benefit increase for employees, there would be no reason to expect
employees to object to the change. An em ployer is always free under
contract law to unilaterally offer its employees increased com pensation
which the employees effectively accept by continued employment. H owever,
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an employer cannot unilaterally decrease and substantially impair an
employee's compensation under an employment contract without providing
a substantial substitute.
See Ellis v. Utah State Retirement Board,
752 P.2d
882 (Utah App. 1988), which held: Once the retirement benefits have
ested, however, the Legislature can modify the plan only upon a showing
that a vital state interest will be protected ... and
only where a substantial
substitute is provided for in lieu of the loss of benefits sustained. Id.
at 886
(emphasis added). The Respondents and Intervenors have failed on both of
these counts. No vital state interest has been demonstrated, nor has a
substantial substitute been provided to compensate Petitioner Jones for his
loss of benefits under the 2013 legislation.
The County/School District Respondents erroneously assert if the
CPI remains unchanged for a sustained period, retirees will generally earn
ore in COLA benefits under the 2013 legislation than they would have.
under the prior law . County/School District Respondents' Answering Brief
at 52 53.
Respondents also suggest that if Oregon were to experience a
sustained economic turndown, that justifies their `betterment' speculation
because the COLA in the 2013 legislation is given annually, regardless of
he CPI. (This assertion of a`betterment' even in an economic turndown,
fails to account for the fact that some retirees have a banked positive
adjustment from prior years that would extend their annual adjustment if
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PERS employees will earn more under the 2013 legislation than under the
prior law .
Id.
at 53-54. Respondents failed to establish facts in the Special
Master's Report evidencing any PERS retiree whose situation is financially
improved by this change, so we are left with unsupported hypotheticals.
In contrast, the Special Master's Report, Page 35, says Taken
together, SB 822 and SB 861, reduced the PERS UAL because the
legislation reduced the amount of benefits projected to be paid to members
in the future. Those liability reductions were estimated to total about $5.3
billion, stated on a system-wide, present value basis.
Id.
So, if the state
estimates it will save $5.3 billion, obviously, the projected savings is
substantial. But if, as the Respondents cJaim, the COLA changes are a
`betterment' for the majority of retirees, then the state and County/School
District Respondents would not be saving $5.3 billion.
The faulty reasoning on the part of the Respondents is incomprehensible.
The County/School District Respondents' assert that
Strunk
holds that
a substantial impairment is measured by
percentage reduction, and a
reduction in benefits of between ' 12% to 20% per month' is 'illustrative of a
substantial impairment' .... County/School District Respondents
Answering Brief at 49. The Strunk
court did not decide, define, or state what
percentage constitutes a substantial reduction, but only that in this particular
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instance, reductions of 12% to 20% are illustrative o f a substantial
impairment of a PE RS con tract. Strunk at 206.
The 2013 legislation reduced the PERS retirees COL A from 2% to a
fixed annual increase of 1.25%. Applying the Strunk
percentage reduction
illustration to Petitioner Jones, it is clear that there has been substantial
impairment to his PE RS retirement contract. For Petitioner Jones, who se
PERS retirement benefit is
greater than $60,000 per year, the 2013
legislation reduced his COLA by 50%. (This reduction was determined by
comparing the A ugust 1, 2014 actual CO LA adjustment for Petitioner Jones,
which was a$64.98 per month increase or a plus 0.977% increase from 2013
under the 20131egislation, with the CO LA betnefit he wo uld have received
under the pre-20131egislation, in which case the COLA would have
increased by 2.0%): Using the
Strunk
illustration of a 12% to 20% reduction
in PERS benefits as a substantial impairment, the 50% reduction in
Petitioner Jones' COLA benefits under the 2013 legislation, satisfies the
substantial impairment test. Compounded over-Petitioner Jones' life
expectancy of 21.3 years; (SMR at 74) this 50% annua l reduction in his
COLA retirement benefits will continue to exponentially decrease his COLA
retirement benefits over his projected lifetime, resulting in a projected
lifetime decrease of $314;507. ($398,823 {total reduction if 2013 legislation
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is upheld} minus $84,316 {elimination of SB656/HB3349 benefits}.) SMR
at 75 and Petitioner Jones' Brief at 44-45.)
Strunk isdispositive as to the unconstitutional impairment of the
COLA in the 20131egislation.
Strunk
specifically held the text of ORS
238.360(1) (2001) evinces a clear legislative intent to provide retired
members with annual COLAs on their service retirement allowances,
whenever the CPI warrants such COLAs. We therefore conclude that the
general promise embodied in ORS 238.360(1)(2001) was part of the
statutory PERS contract applicable to the group of retired members affected
by the 2003 provisions at issue here.
Id. at 221. The Strunk
holding
validated the PERS retirees' right to an annual ORS 238.360(1) (2001),
COLA that is based on the CPI. The 20131egislation, in establishing a
minimal, fixed, annual increase, is no longer a true cost of living adjustment.
It does not refer to or rely on the CPI at all.
Petitioner Jones has qualified for and satisfied all the prerequisites to
having fully vested contractual rights in his PERS retirement benefits
existing at the time of his retirement in 1998, including the COLA existing
prior to the 2013 legislation.
Petitioner Jones' COLA benefits and their method of calculation is
part of his PERS contract, and his contract rights may not be reduced after
retirement. In
United Firefighters of Los Angeles City v. City of Los
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Assignment of Error N o: 4 Respondents and Intervenors are in error
in asserting that the Oregon
Legislature may remove that part of
Petitioner Jones' PE R S contractual retirement b enefits provided in SB
656 a nd H B 3349 , solely b ecause he lives out of state, as that action
would violate Ragsdale
the principles of intergovernm ental tax
immu nity, and the legislative intent in enacting these two b ills.
Ragsdale
made it clear that Petitioner Jones' retirement com pensation
includes the benefits provided, in SB 656, and that the O regon Legislature
intended those benefits to apply 'equally to, in state and out of state Oregon
retirees.
SB 656 (Oregon Laws 1991, chapter 796) was challenged by a federal
retiree in
Ragsdale v. Department of Revenue, 321
Or. 216, 895 P.2d 1348
(Or. 1995), on the basis that the benefit given to Oregon state employees in
SB 656 discriminated in taxation between state and federal retirees in
violation of federal constitutional and statutory doc trine of
intergovernmental tax immunity. The Appellant asserted the increased
benefit given to state retirees amounted to a tax refund aind that federal
retirees were entitled to that same refund. The Court gave five reasons why
the SB 6 56 benefits given to state PER S retirees were not a tax rebate or a
tax beneft. Tlie last of these is particularly instructive to the current case:
Fifth and last, we'find no correlation, either direct or indirect,
between state retirees' state tax obligations and the amount of
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increased PERS retirement benefits, if any, to which they may
be entitled under the provisions of Oregon Laws, 1991, chapter
796. As noted, the amounts of increased retirement benefits are
based on the PERS members' years of service, not on their state
income tax obligations. All eligible PERS retirees receive
those benefits. .. . Indeed, taxpayer's claim for a ta.z refund
measured by the increased benefit paid to state retirees -
incorrectly assumes that every state retiree who receives an
increase in benefits paid state income taxes, but it is
conceivable that many state retirees paid little or no state
income tax for 1991.... In sum, taxpayer's argument lacks
both a factual and a legal predicate. The system of state
taxation is not implicated by the 1991 increase in retirement
benefits to some state retirees and the principle of
intergovernmental tax immunity does not apply, because there
is
no discrimination in taxation on account of the source of the
compensation.
Id.
at 228-229 (italics added).
Ragsdale confirms that the Court and the Legislature knew that not all state
retirees were paying Oregon income tax, but they were all still receiving the
SB 656 benefit.
The Ragsdale challenge relied on
Sheehy v. Public Employees
Retirement Division, 262 Mont. 129, 864 P.2d
762 reh. den.
(1993), which
held that the Montana legislative adjustment to Montana state retirement
benefits in response to the Davis
decision was a partial tax rebate for state
retirees, though named otherwise, and therefore violated federal law as
discriminatory taxation of federal retirees who do not receive the same
benefits. Before Davis,
Montana, like Oregon, taxed federal retirement
benefits but exempted state retirement benefits.
Id.
at 764. Appellant
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18
Ragsdale
argued Oregon's SB 656 should
fail for those sam e reasons. The
Court disagreed and upheld SB 656, saying:
The
Sheehy court's conclusion that the Montana adjustment is
a partial tax rebate that violated federal law relied heavily on
two features of the Montana enactment:
(1) that only retirees
who are Mo ntana residents will receive the benefit,
and (2) that
the retirement benefits at issue are funded solely by the .
Montana general fund.
Id.
The Court went on to find:
In
contrast, under. Oregon Law s 1991, chapter 796, every state
retiree who qualifies for benefits (based on years of service)
will receive the benef ts, regardless of the state retiree s
..
residency.
Moreover, the challenged provisions of Oregon
Laws 1991, chapter 796, do not appropriate money from the
Oregon general fund. Rather, the increased PERS retirement
benefits are funded by contributions from all PERS employers
to the PERS retirement trust fund.
Id. (emphasis added). The Court held the benefits paid to Oregon state
retirees did not violate 4 U.S.C. section 111 and the cons titutional principle
of intergovernmental tax immunity.
Ragsdale
upheld the constitutionality of SB 656 because, every state
retiree who qualifies for the benefits (based on years of s ervice) will receive
the benefits, regardless of the state retiree's residency. Id.
at 230.
Ragsdale
also confirmed that the benefits provided in SB 656 are `compensation' to
state retirees.
Id.
at 231. As compensation, the benefits provided under SB
656
became part of the compensation base within the overall PERS
retirement system, which Petitioner Jones is contractually entitled to receive.
Ragsdale
makes it clear that SB 656 benefits may not be confined only to
PETITIONER WAYNE STANLEY JONES .EXTENDED REPLY BRIEF
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19
retirees living in Oregon. The 2013 legislation is unconstitutional under
Ragsdale.
In
Vogl v. D epartment of Revenue,
327 Or. 193, 960 P.2d 373 (1998),
a federal retiree challenged HB 3349, the 1995 law that gave a pension
benefit to state retirees based on their total years of service before 1991.
Federal retirees asserted HB 3349 violated the equal tax treatment required
by the federal doctrine, of intergovernmental tax immunity. The Court
noted:
as with the 1991 increase, entitlement to the 1995 increase is not
conditioned on actual liability for an equivalent amount in state taxes.
PER S recipients receive the inct-ease even if they pay little or no state
income tax on their PERS benefits. Id.
at 380 (emphasis added).
However, unlike
Ragsdale,
the Court found the benefit increase was, in
substance, a tax rebate. The Court said two facts countered that conclusion:
There is relatively little in the statute to pit against that
sugges tion only the facts that the increase is to be funded by
employer contributions, ... and that
it applies without regard
to individual tax circumstances.
Although those latter factors
were deemed sufficient in Ragsdale to counteract the relatively
weak evidence that the 1991 increase was a tax rebate, they
cannot carry the day against the stronger circumstances in the
present context.
Id.
at 381(emphasis added.)
The
Vogl
Court held that the federal retirees are entitled to an
equivalent tax benefit. The Court then addressed the potential ripple of its
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
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20
decision and held: W e-emphasize that our holding necessarily is confined
to the 1995 statute.
W e- do not overrule Ragsdale or its analysis of the 1991
law.. Id.
(emphasis added).
The Court made it clear in Ragsdale
and Vogl
that the Oregon
Legislature, in enacting SB 656 and HB 3349, intended to avoid potential
constitutional challenges under federal intergovernmental tax imm unity by
providing that every state retiree who qualifies for benefits (based on years
of service), will receive the benefits ; regardless of the s tate retiree's
residency.
Assignm ent of Error No. 5 Petitioner Jones' contractual right to his
full PERS retirement benefit, including the pre-2013 CO LA , was
fulfilled when he retired; they are not a windfall, a gratuity , or an
ad hoc CO LA as erroneously alleged by Respondents and Intervenors.
A. O regon case law affirms that Petitioner Jones gave consideration
for his pre-20131eg islation retirem ent benefits.
Allegations that Petitioner Jones' retirement benefits are a windfall
or gratuity,'.' as erroneously alleged by State Res pondents and
County/School District Respondents, fails to account for this Court's
holding in
Taylor and Rose C ity Transit. Petitioner Jones', continued
employm ent affter the enactment of the COL A in 19 71 and enhancem ent in
1973, and the enactment of SB 656 in 1991 and HB 3349 in 1995 constitutes
PETITIONER WAYNE STANLEY ]ONES' EXTENDED REPLY BRIEF
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21
his acceptance of these terms. These legislative changes were included as
integral parts of PERS retirement benefits when Petitioner Jones retired in
1998. Petitioner Jones is contractually entitled to his full retirement benefit,
which includes the pre-2013 COLA, and those benefits provided in SB 656
and HB 3349.
Taylor v. Multnomah County Deputy Sheriff's Retirement Board,
265
Or. 445 (1973), settles the matter that retirement.benefits are not a`windfall'.
or a`gratuity'. In Taylor,
the Oregon Supreme Court reviewed the history of
contract theory, which looks upon a pension as part of the employee's
promised but delayed compensation for the performance of his job. The
Court held:
Oregon has joined the ranks of those rejecting the gratuity
theory of pensions and has held that contractual rights to a pension can be
created between the employee and employer. Id.
at 450 (emphasis added).
The benefits payable to Petitioner Jones under SB 656 and HB 3349
and the 1973 COLA are clearly accrued, earned benefits that Petitioner
Jones has given consideration for and is fully entitled to receive as a retired
employee. Petitioner Jones' right to his contractual PERS retirement
benefits was entirely fulfilled when he retired. In
Rose City Transit v. City
of Portland, 271
Or. 588 (Or. 1975), the Oregon Supreme Court noted that
an employee pension or disability plan may be viewed as an offer to the
employee which may be accepted by the employee's continued employment,
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23
C. Respondents and Intervenors erroneous characterization of
Petitioner Jones pre-2013 contractual retirement benefits as a
`windfall or a`gratuity fails to recognize that upon his
retirement, Petitioner Jones right to his PERS contractual
retirement benefits were fully vested, and the 20131egislation
resulted in a substantial impairment of those rights.
Petitioner Jones, upon his retirement in 1998, having contributed as a
member of the PERS pension system for over 30 years, had fulfilled all the
obligations of the PERS retirement pension plan; and his benefits could not
thereafter be substantially impaired. Oregon courts have affirmed this
principle.
In
Hughes,
the Oregon Supreme Court stated:
Oregon is in line with the theory of pensions which holds that
pensions are a form of compensation and that employees
acquire vested contractual rights in pension benefits. ... An
employee's contract right to pension benefits becomes vested at
the time of his or her acceptance of employment. ... On vesting,
an employee's contractual interest in a pension may not be
substantially impaired by subsequent legislation.
Hughes v. State of Oregon,
838 P.2d 1018, 1029 (Or. 1992). The Court also
determined that:
a pension right `is an integral part of contemplated
compensation', and ... public employment gives rise to certain
obligations which are protected by the contract clause of the
Constitution, including the right to payment of salary which has
been earned.' Therefore, in making any change in retirement
benefits, it is essential to adhere to the principle that an
employe's [sic] right to retirement benefits can not be destroyed
`by a repeal of a statute without the enactment of a substitute'.
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
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4
Id.
at 1028.
In
Hart v. W ashington Cou nty Rural Fire Protection District No. 1,
52 Or. App. 1005, 630 P.2d 390 (Or.App. 198 1), plaintiffs retired under a
1973 pension plan of the defendant. Defendant modified its pension plan in
1976 and began paying the plaintiff decreased pension amounts. The
Oregon Court of Appeals determined this change impaired plaintiffs'
contractual pens ion rights:
Once the employe [sic] has fulfilled all of his obligations
under the plan and has retired, rights under the pens ion plan
become ves ted, and those rights m ay not be impaired by the
subsequent action of the employer. ... Plaintiffs here all knew
of the original plan adopted by defendant, fulfilJed their
employment obligations under that plan and retired while the
original planwas in effect. Their rights in the original plan
vested when they retired and may not now be impaired.
Id. at 392, n.2, n.3 The Court held that Plaintiffs, upon retirement, were
entitled to rely upon the benefits provided in the original plan. Id.
at 393.
(As a side note, W. Michael Gillette participated as the presiding judge in
this unanimous decision.)
Assignment of Error No. 6 State Respondent misstates the facts in
minimizing the substantial impact of the removal.of SB 656 and HB ~
3349 from Petitioner Jones.
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25
State Respondents' argument that removing SB 656 and HB 3349,
`tax remedy' change, does not rise to the level of a substantial impairment,
misstates the facts and minimizes the substantial impairment wrought by
removing these contractual retirement benefits from Petitioner Jones.
The numbers and percentage reduction attributed to Petitioner Jones by the
State Respondents Answering Brief at 76-77 are invalid and understate the
substantial impact of SB 656 and HB 3349,
for three reasons: First, State
Respondents' take into account only SB 656, the first of the two bills
providing a remedy for PERS members after the
Davis
decision; Second,
Petitioner Jones actually receives the benefits provided under HB 3349,
which bill authorized an increase in his employee refund of accumulated
employee contributions under either SB 656 or HB 3349, whichever
provides the greater percentage increase to him. And for Petitioner Jones,
his benefits under HB 3349 are approXimately twice as much as under SB
656. And third, Petitioner Jones' retirement benefits are paid to him over his
lifetime, but State Respondents show his present value only. The true
value of Petitioner Jones' total reduction and its attributable percentage are
substantially greater than those given in the State Respondents' figures. The
measurement tools used by the State are intended to substantially understate
the actual impact of Petitioner's loss.
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
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Respectfully submitted this 18th day of September, 2014.
Wayne Stanley Jones, Pro Se
18 North Foxhill Road
North Salt Lake, Utah 84054
Telephone: 801-296-1552
Email: wstanm~
tggrnail.com
7
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8/11/2019 Jones Reply Brief
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Ap
pend
ix 2
A
ppe
ndix
GL
OSS
RY
This
appe
ndix
conta
ins de
finiti
ons o
fcerta
in ter
ms
as
they
areu
sedin
ta t
em en
t
67 ,
thete r
msm
ay ha
ve di f
fe ren
t
m
ea nin
gs in
other
c onte
xts.
A
ctuar
ial p
resen
t valu
e of
proje
cted
benef
it pa
ym en
ts
Pro
jected
bene
fit pa
ymen
ts dis
count
ed to
r eflec
tthe
expec
ted e
ffects
of th
etime
valu
e(pre
sent
value
) of m
oney
a
nd th
ep ro
babili
ties o
fpay
ment.
ct
ua ria
l v alu
at ion
T
he de
te rmin
ation
,a s o
f a po
in t in
time
the ac
tuari
al valu
ation
date)
,of th
eserv
ice c
ost, to
tal pe
nsion
iiabil
ity, an
d
re la
teda
ctuari
al pre
sentv
alue
of pro
jected
be ne
fit pa
ym en
ts for
pen s
ionsp
erform
ed in
co nf
ormit
y wit
h Act
uarial
St
an da r
ds o f
Prac t
iceun
less o
ther w
ise s
pe ci f
iedby
t he G
ASB
.
Act
ua ria
l valu
ation
date
T
he da
te as
o f wh
ich a
nactu
arial
v aiva
tion i
sper
fo rm e
d.
A
ctua r
ially d
eterm
ined
cont
ribut
ion
Ata
rg et o
r rec
om me
nde d
c on t
ribut i
on to
a defi
ne d b
en ef i
t p en s
io n p
lan fo
r the
repo r
tin g p
er iod
, dete
rm in
ed in
confo
rmity
with
Actu
arial
Stan
dards
ofP
ractic
e bas
ed on
the m
ost
recen
t mea
surem
ent
avaita
blew
hen
the
c
ontri
bution
for t
he re
portin
g per
iod w
as ad
opted
.
A
d ho
c cos
t-of-l
iving
adju
stm e
nts a
d hoc
C OL
As)
Cost-
of-liv
inga
dj ust
men t
s th
at req
uire a
decis
ion to
gran
tby th
e aut
hority
respo
nsibl
efor m
akin
gsuc
hdeci
sions.
d ho
c po
stem
pioym
ent
benef
it ch
anges
Po
stemp
loym
ent
benef
it cha
nges
th a
t requ
ire a d
ecisi
on to
grant
by th
e auth
ority
respo
nsibl
e for
makin
g suc
h
decis
ions.
Age n
tm u
ltiple
-em p
loyer
defin
ed b
enefi
t pe n
sion p
lan
age n
t pe n
sion p
ian)
A mu
ltiple-
em plo
yer d
ef ine
d ben
ef it p e
ns ion
plan
in wh
ichp
ension
p lan
as set
s a re p
oo led
fo r i
nv es t
ment
pu rpo
ses
bu
t s epa
ra te a
cc ou
nt sa r
e m ai
nt ain
ed fo
r ea ch
in div
idua
l e mp
lo yer
so th
at eac
h em
ploye
r s sh
areo f
th e p
oo ied
asse
ts is l
eg al l
y avai
lable
to pa
y the
be ne f
its of
o nly
its em
ploy
ee s.
A
lloc a
ted in
sur a
nce c
ontra
cts
Contr
acts w
ith a
n insu
rance
com p
any u
nder
whic
h rela
ted pa
ymen
ts to
the in
suran
ce co
mpan
y are
curren
tly u
sed
to
purc
hase
imme
diate
or de
ferre
dann
uities
for i
ndivi
dual p
lan m
emb
ers. A
lso m
ay b
erefe
rred t
oas a
nnui
ty
co
ntrac
ts.
A
ut om
atic
cost-o
f-livi
ng ad
justm
en ts
auto
mati
c CO
LAs)
Cost-of-living adjustments that occur without a requirement for adecision to grant by a responsible authority
in
cludin
gth o
se fo
r whi
ch th e
a mo
un ts a
re de
term i
ned b
y refe
renc e
t o a
sp ecif
ied e
xp erie
nce f
ac tor
(s uc h
a s th
e
e
arnin
gs ex
perien
ce of
the p
ensio
n plan
) or t
o ano
ther v
ariab
le (su
ch as
an inc
rease
in th
e con
sume
r price
inde
x).
29
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CERTIFICATE OF FILING
I certify that on September 18, 2014, I filed the original and 7 copies of the
WAYNE STANLEY JONES' EXTENDED REPLY BRIEF with the
Appellate Court Administrator by United States Postal Service, first class,
priority mail, certified mail, return receipt requested at this address:
Appellate Court Administrator
Appellate Court Records Section
1163 S tate Street -
Salem, OR 97301-2563
gppealsclerk@ oj d. s tate. or.us
CERTIFICATE OF SERVICE
I certify that on September 18, 2014, I served two copies of the foregoing
WAYNE STANLEY JONES' EXTENDED REPLY BRIEF by United
States Postal Service, first class mail, and also emailed an electronic copy to:
AG Ellen Rosenblum 4753239
SG Anna M. Joyce #013112
AAG Keith L. Kutler
#852626
AA G Matthew J. M erritt # 122206
AAG Michael A. Casper #062000
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Telephone: 503-378-4402
F acs imile : 5 03 -3 78-63 06
anna. j oyce(~
,doj . state. or. us
keith.kutler(~
,doi . state. or.us
matthew.merritt c
~
,doj.state.or.us
michael. casper@ doj . state. or. us
Attorneys for State Respondents
W illiam F. G ary #770325
william.f.g_
ry@harran .
com
Sharon A. Rudnick#830835
sharon.rudnick@harran .
com
Harrang Long Gary Rudnick PC
360 E. 10`
Ave., suite 300
Eugene, OR 97401
Telephone: 503 -242-0000
F acsimi le : 541-686-6564
Attorneys for Respondents Linn
County, Estacada, Oregon City,
Ontario, West Linn School Districts
and Beaverton School Districts, and
Intervenors Oregon School Boards
Association and Association of
Oregon Counties
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
8/11/2019 Jones Reply Brief
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Harry Auerbach #821830
Kenneth A. McGair #990148
Office of the City Attomey .
1221 SW 4
t h
Avenue, Ste 430
Portland, OR 97204
Telephone: 503-823-4047
Facsimile: 503-823-3089
Attorney for Respondent C ity of.
Portland
Eugene J. Karandy II #972987
Office of County A ttorney
Linn County Courthouse
104 SW Fourth Avenue, Room 123
Albany, OR 97321
Telephone: 541-967-3 840 .
F acs im ile : 541-92 8-5 424
g,karandyna,co. linn. or. us
Attorney for Respondent Linn Count
,
Lisa M. Frieley #912763
Oregon School Boards Association
PO Box 1068
Salem, OR 97308
Telephone: 503-5 88-2800
Facsimile: 503-588-2813
Attorney for Respondents Estacada,
Oregon City, Ontario, and West Linn
School Dis tricts and Intervenor
Oregon School Boards Association
Rob Bovett #910267
Association of Oregon Counties
1201 Court St. NE Ste 300
Salem, OR 97301
Telephone: 971-218-0945
rbovett(~
,aocweb.org
Attorney for Linn County
Daniel B. Atchison #040424
Kenneth Scott Montoya #064467
Office of City Attorney ..
555 L iberty Street SE Rm 205
Salem, OR 97301
Telephone : 5 03 -5 8 8-6003
Facsimile: 503-361-2202
Attorney for Respondent City of
Salem
Edward F. Trompke #843653
Jordan Ramis PC
Two Centerpointe Drive, 6 t
'' Floor
Lake Oswego, OR 97035
Telephone: 503-598-5532
Facsimile: 503-598-7373
Attorney for Respondent Tualatin
Valley Fire and Rescue
W. Michael Gillette #660458
Leora Coleman-Fire .#113581
Sara Kobak#023495
W illiam B . Crow #610180
Schwabe Williamson & W yatt PC
1211 SW 5`
h Ave Suite 1900
Portland, OR 97204
Telephone: .503-222-9981
Facsimile: 503-796-2900
Attorneys for Intervenor League of
Oregon Cities
George A. Riemer (Petitioner Pro
Se)
23206 N. Pedregosa Drive
Sun City West, AZ 85375
Telephone: 623 -23 8-503 9
Petitioner pro se
PETITIONER WAYNE STANLEY JONES' EXTENDED REPLY BRIEF
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Michael D. Reynolds (Petitioner Pro
S e )
8012 Sunnyside Avenue N.
Seattle, WA 98103
Telephone: 206-910-6568
Petitioner pro se
Sara K. Drescher #042762
Tedesco Law Group
3021 NE Broadway
Portland, OR 97232
Telephone: 866-697-6015
Attorney for Amicus Curiae IAFF
Thomas A. Woodley
tawAwmlaborlaw. com
Douglas L. Steele
Woodley & McGillivary
1101 Vermont Ave., NW, Suite 1000
Washington, DC 20005
Telephone: 202-697-6015
Attorneys for Amicus Curiae IAFF
d l
Wayni Stanley Jon s
Petitioner, Pro Se
Gregory A. Hartman #741283
HartmanG(~
,bennettthartman. com
Aruna A. M asih #973241
Bennett Hartman Morris
210 SW Morrison Street, Suite 500
Portland, OR 97204
Telephone: 503-546-9601
Attorneys for Petitioners Moro,
Domenigoni, Custer, Hawkins,
Arken, Ditter, O'Kief, Smith,
Johnson, Clouseer, Silence,
Veckery, and Voek
Craig A. Crispin #82485
Crispin Employment Lawyers
1834 SW 58
t
Avenue, Suite 200
Portland, OR 97221
Telephone: 503-293-5759
Attorney for Amicus Curiae AARP
The Honorable Stephen K. Bushong
Multnomah County Circuit Court
1021 S.W. 4
h
Avenue
Portland, OR 97204
Telephone: 503-988-3546
stephen.k. bushong@oi d. state. or.us
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