Verified Correct Copy of the Original 9/23/2014

Q
~T
IN THE SUPREME COURT OF THE STATE OF OREGON

O I Q
EVERICE MORO, TERRI DOMENIGONI, CHARLES CUSTER, `A OF~pRp
HAWKINS, MICHAEL .ARKEN, EUGENE DITTER JOHN O'KIEF, MICHAEL--- ;zt&Z,,P
SMITH, LANE JOHNSON, GREG CLOUSER, BRANDON SILENCE, ALISON
VICKERY, and JIN VOEK
Petitioners,
V.
STATE OF OREGON, STATE OF OREGON by and through the Department of
Corrections, LINN COUNTY, CITY OF PORTLAND, CITY OF SALEM,
TUALATIN VALLEY FIRE & RESCUE, ESTACADA SCHOOL DISTRICT,
OREGON CITY SCHOOL DISTRICT, ONTARIO SCHOOL DISTRICT,
BEAVERTON SCHOOL DISTRICT, .WEST LINN SCHOOL DISTRICT, BEND
SCHOOL DISTRICT, and PUBLIC EMPLOYEES RETIREMENT BOARD,
Respondents,
And
LEAGUE OF OREGON CITIES; OREGON SCHOOL BOARDS ASSOCIATION;
CENTRAL OREGON IRRIGATION DISTRICT; and ASSOCIATION OF
OREGON COUNTIES,
Intervenors.
S061452 (Control)
WAYNE STANLEY JONES,
Petitioner,
V.
PUBLIC EMPLOYEES RETIREMENT BOARD, ELLEN ROSENBLUM, Attorney
General and JOHN A. KITZHABER, Governor,
Respondents.
S061431
NIICHAEL D. REYNOLDS,
Petitioner,
V.
PUBLIC EMPLOYEES RETIREMENT BOARD, State of Oregon; and JOHN A.
KITZHABER, Governor, State of Oregon,
Respondents
S061454
GEORGE A. RIEMER,
Petitioner,
V.
STATE OF OREGON, OREGON GOVERNOR JOHN KITZHABER, OREGON
ATTORNEY GENERAL ELLEN ROSENBLUM, OREGON PUBLIC
EMPLOYEES RETIREMENT BOARD, and OREGON PUBLIC EMPLOYEES
RETIREMENT SYSTEM,
Respondents.
S061475
GEORGE A. RIEMER,
Petitioner,
V.
STATE OF OREGON, OREGON GOVERNOR JOHN KITZHABER, OREGON
ATTORNEY GENERAL ELLEN ROSENBLUM, OREGON PUBLIC
EMPLOYEES RETIREMENT BOARD, and OREGON PUBLIC EMPLOYEES
RETIREMENT SYSTEM,
Respondents.
S061860
PETITIONER REYNOLDS' REPLY BRIEF
Judicial Review (Original Proceeding)
Oregon Laws 2013, Chapter 53 (Senate Bi118220
Oregon Laws 2013, Chapter 2(special session) (Senate Bi11861)
GREGORY A. HARTMAN #741283
ARUNA A. MASIH #973241
210 S W Morrison St.
Suite 500
Portland, OR 97204-3149
Telephone: 503-227-4600
Attorneys for Petitioners Moro,
Domenigoni, Custer, Hawkins, Arken,
Ditter, O'Kief, Smith, Johnson, Clouser,
Silence, Vickery and Voek
Michael D. Reynolds
8012 Sunnyside Avenue N.
Seattle, WA 98103
Telephone: 206-910-6568
Petitioner pro se
GEORGE A. RIEMER
23206 N.Pedregosa Drive
Sun City West, AZ 85375
Telephone: 623-23 8-5039
Petitioner pro se
WAYNE S. JONES
18 North Foachill Road
North Salt Lake, UT 84054
Telephone: 801-296-15 52
Petitioner pro se
ELLEN ROSENBLUM #753239
Attorney General
ANNA M. JOYCE #013112
Solicitor General
KEITH L. KUTLER #852626
Assistant Attorney General
MATTHEW J. MERRITT #122206
Assistant Attorney General
MICHAEL A. CASPER # 062000
Assistant Attorney General
400 Justice Building
Salem, Oregon 97310
Telephone: 503-378-4402
Attorneys for State Respondents
HARRY AUERBACH #821830
Office of the City Attorney
1221 SW 4th Avenue, Ste 430
Portland, OR 97204
Telephone: 503-823-4047
Attorney for Respondent City of
Portland
WILLIAM F. GARY #770325
SHARON A. RUDNICK #830835
HARRANG LONG GARY RUDNICK
PC
360 E. lOth Ave., Suite 300
Eugene, OR 97401
Telephone: 503-242-0000
Of 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
DANIEL B. ATCHISON #040424
Office of City Attorney
555 Liberty Street SE Rm 205
Salem, OR 97301
Telephone: 503 588-6003
Attorney for Respondent City of Salem r
EUGENE J. KARANDY II #972987
Office of the County Attorney
Linn County Courthouse
104 SW Fourth Avenue, Room 123
Alba.ny, OR 97321
Telephone: 541 967-3 840
Of Attorneys for Respondent Linn
County
LISA M. FRIELEY #912763
Oregon School Boards Association
PO Box 1068
Salem, OR 97308
Telephone: 503 588-2800
Of Attorneys 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
Of Attorneys for Respondent Linn
County
EDWARD F. TROMPKE #843653
Jordan Ramis PC
Two Centerpointe Drive, 6th Floor
Lake Oswego, OR 97035
Telephone: 503 598-5532
Attorney for Respondent Tualatin Valley
Fire & Rescue
W. MICHAEL GILLETTE #660458
LEORA COLEMAN-FIRE # 113 5 81
SARA KOBAK #023495
WILLIAM B. CROW #610180
SCHWABE WILLIAMSON & WYATT
PC
1211 SW 5th Ave Suite 1900
Portland, OR 97204
Telephone: 503-222-9981
Of Attorneys for Intervenor League of
Oregon Cities
SARAH K. DRESCHER #042762
Tedesco Law Group
3021 NE Broadway
Portland, OR 97232
Telephone: (866) 697-6015
Of Attorneys for Amicus Curiae IAFF
THOMAS A. WOODLEY
Douglas L. Steele
WOODLEY & McGILLIVARY
1101 Vermont Ave, N.W.
Suite 1000
Washington, D.C. 20005
Phone: (202) 833-8855
taw@wmlaborlaw.com
dls@wmlaborlaw.com
Of Attorneys for Amicus Curiae IAFF
CRAIG A. CRISPIN #82485
Crispin Employment Lawyers
1834 S W 5 8th Avenue, Suite 200
Portland, OR 97221
Telephone: (503) 293-5759
Attorney for Amicus Curiae AARP
September, 2014
Index i
INDEX OF CONTENTS
ARGUMENT ....................................................1
I. SB 822 violates 4 USC 114(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. Increased benefits are not a"windfall" for non-resident PERS
Retirees..................................................... 4
III. SB 822 violates non-residents PERS retirees' contractual rights. ......, 6
A. Introduction .............................................6
B. Circumstances ........................................... 8
1. Hughes and its effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Chess/Stovall and HB 3349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3. Chess/Stovall and HB 2034 (1997) . . . . . . . . . . . . . . . . . . . . . . 10
4. Chess/Stovall settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Questions .............................................. 12
D. Argument .............................................. 13
1. Employing ordinary statutory construction/contract
standards is appropriate in this case . . . . . . . . . . . . . . . . . . . . . . 13
2. Properly construed, the remedial statutes substitute
increased benefits as a new term and obligation for the
tax exemption term and obligation of the PERS contract ...... 15
3. ORS 238.362(3) should not be construed to defeat
the legislature's and the parties' obvious intent . . . . . . . . . . . . . . 19
Index ii
4. The nature of the obligation under the substitute term
is to pay increased benefits to all PERS retirees .......... . .21
5. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CONCLUSION .................................................25
INDEX OF AUTHORITIES
Cases Cited
Eckles v. State of Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
306 Or 380, 397, 760 P2d 846 (1998)
Hughes v. State of Oregon
314 Or 1, 838 P2d 1018 (1992) . . . . . . . . . . . . . . . . . . . 6, 8, 9, 13, 15, 19
Ragsdale v. Dept. of Revenue,
321 Or 216, 895 P2d 1348 (1995), cert den 516 US 1011,
116 S Ct 569, 133 L3d 2d 493 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Strunk v. PERB,
338 Or 145, 160, 108 P3d 1058 (2005) . . . . . . . . . . . . . . . . . . . . . . . .7, 20
Yogl v. Dept. of Revenue
327 Or 193, 960 P2d 373 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 23
Statutory Provisions
ORS 238.445(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 16, 17
ORS 316.127(9) ...............................................23,24
ORS 316.68
0(1)(d)
(1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . .9
ORS 238.362(3) ................................................ 11
Index iii
ORS 238.364 ................................................... 25
ORS 238.366 ....................................................25
ORS238.375(3) (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Oregon Laws 2013, chapter 653 ("SB 822") . . . . . . . . . . . . . . . . . . . . . 1, passim
Oregon Laws 1997, chapter 175
("HB 2034") . . . . . . . . . . . . . . . . . . . .7, 1.0, 11, 12, 16, 18, 19, 20, 21, 23, 24, 25
Or Laws 1991, ch 823, 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8119
HB 3349 (1995) .............. 4, 5, 6, 7, 10, 11, 12, 16, 18, 19, 20, 22, 23, 24
SB' 656 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7, 10, 17, 18, 22
4 USC 114(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 3, 4
Other Authorities
Restatement Second Law of Contracts, 89, comment b., and 279......... 19
Williston on Contracts, Fourth Ed, 7.37, pp 695-96 . . . . . . . . . . . . . . . . . . . . 19
PETITIONER REYNOLDS' REPLY BRIEF
ARGUMENT
I. SB 822 violates 4 USC 114(a).
Respondents, including intervenors, make light of and give short shrift to
petitioner Reynolds' argument that (Oregon Laws 2013, chapter 653 ("SB 822")
imposes an "income tax" within the meaning and prohibition of 4 USC 114(a), a
relatively recently adopted federal statute aimed specifically at safeguarding the
financial interests of non-resident retirees. Perhaps respondents' strategy rests on
the hope that if they do not take petitioner's argument seriously, this court won't
either. But whether the legislature can do indirectly what federal law prohibits it
from doing directly is a serious issue and deserves to be treated as such.
Respondents take issue with virtually none of the propositions petitioner
advances in his opening brief. Thus, respondents do not dispute that the federal
analysis of a tax question considers the practical impact the substance of the
reduction or exaction, not the state's label. Petitioner's Opening Brief ("POBr") 23-
25. Nor do they dispute that analysis includes, inter alia, consideration of the
nature and purpose of the exaction and whether the income derived is used for
general governmental purposes. POBr 25-30. Respondents also do not
1
acknowledge or address petitioner's argument that Vogl v. Department of Revenue,
327 Or 193, 960 P2d 373 (1998), involved analysis of a similar federal "tax"
question and supports, if not drives, the analysis of the tax question at issue here.
POBr 37-43.
The state, for its part, implicitly suggests that form counts but substance
does not, and that state law is what counts in asserting that SB 822's reduction does
not raise revenue and therefore does not possess "the characteristic feature of a bill
for raising revenue." State's Ans Brief ('SABr") 80. That bare assertion, however,
ignores petitioner's explanation for why SB 822's reduction in the retirement
incomes of non-resident PERS retirees is the substantial equivalent of an income
tax on those incomes, both in terms of what the reduction achieves for government
($5.3 billion more dollars available to spend on general government services) and
the effect on non-resident retirees (reduced incomes). And the state's claim that
petitioner's argument would mean a benefit reduction in any "public assistance"
would qualify as a tax disregards all parts of the federal analysis, particularly the
part that inquires as to the reason for the reduction. Here, the unquestioned and
unchallenged reason that the legislature chose to reduce non-resident retirees'
incomes is because federal law prevents the legislature from taxing those incomes.
Clearly SB 822's benefit reduction for non-resident retirees would never have
happened if the state could impose a straightforward income tax on their retirement
incomes.
Respondent-intervenor League of Oregon Cities (LOC) contends that
petitioner's argument is "flawed" because SB 822 merely takes away benefit
increases that were "not owed to begin with," and which the legislature recognized
"needed to be discontinued." LOC answering brief ("LABr") 84. But surely the
claim that an exaction is "needed" could be made for any legislatively-imposed
exaction that has been deemed to satisfy the definition of "tax" for federal law
purposes. And LOC's statement that the reduction merely takes away benefits that
were "not owed" similarly adds nothing to the analysis. If, underlying this claim,
is the suggestion that the taxing of gratuitous retirement income of non-resident
retirees does not violate 4 USC 114(a), LOC cites no authority for that
proposition. And if 4 USC 114(a) prohibits the taxation of gratuitous retirement
incomes, then it stands to reason that an exaction from those retirement incomes
that satisfy the other indicia of a"tax" similarly would be forbidden.
Respondent school districts and respondent-intervenors School Board's
Association and Association of Oregon Counties (the "school districts") maintain
that the "fatal flaw" in petitioner's "tax" argument is that SB 822 "affects only the
calculation of the amount of [petitioner's] retirement income ***[by] removing
from the calculation the windfall benefits he has been receiving for the period he
has resided outside Oregon." School Districts' answering brief ("SDABr") 102.
Aside from the "windfall" descriptor (addressed below), the school districts'
3
argument is a rephrasing of the state's argument in Vogl (HB 3349 is a"benefit
increase;" it is not a"tax rebate"). This court, however, applying its "substance
counts; labels are to be ignored" analysis, unanimously rejected that argument. As
such, the school districts do not address or explain why, employing a federal
analysis and/or in light of Vogl, the reductions in the retirement incomes of non-
resident PERS retirees caused by SB 822 are not the substantial equivalent of an
"income tax" which 4 USC 114(a) forbids.
II. Increased benefits are not a"windfall" for non-resident PERS retirees.
The state primarily but the school districts also assert at some length that for
non-resident retirees, the SB 656 (1991) and HB 3349 (1995) increases in benefits
were a mere windfall. Therefore, they 'argue, the 2013 legislature acted
appropriately because it merely took away what non-resident retirees should never
have received to begin with. See, e.g., SABr 74.
The "windfall" characterization is wrong for several reasons. First, it
Ignores the fact that the legislature consciously decided to extend the increases to
all PERS retirees regardless of whether they paid any state income taxes or the
actual amount they did pay. That policy choice was not a fluke; it was a
continuation of its consistent policy choice since 1945 to treat PERS retirees the
same in terms of the payment of their gross retirement benefits, regardless of their
individual tax or other situations post retirement.
4
Second, the assertion is wrong because what non-resident retirees received
in SB 656/HB3349 benefits was not unintended, unexpected or unforeseen by
those retirees as well. For PERS members actively employed in 1991 and 1995,
and who subsequently retired knowing full well that, if they moved out of state
after retirement their benefits would not be taxed by Oregon, receipt of the increase
was fully expected and foreseen and likely factored into their decisions as to when
to retire as well as where to live after retiring.
Finally, the decision to extend the increases to all retirees could well have
been viewed by the legislature as simply good business. The legislature
considering HB 3349 had information that showed the state agency cost of
increased benefits to all PERS retirees would be $27.3 and $$36.4 million for the
1995-97 and 1997-99 biennia, respectively. Ex 54, p 73. Only 34% of that cost,
however ($9.3 million and $12.4 million) would come from the state general fund,
Ibid. Legislative staff also predicted that if the "full exemption" from taxation
were chosen as the policy choice, the General Fund would forego $57.8 million in
tax revenue in 1995-97, $211 million in 1997-99 and $244.5 million in 1999-01.
Ex 54, p 87. That the General Fund would benefit tremendously from taxing
retirement benefits including those of federal retirees over the alternative of
exempting all benefits from taxation, and that it could well afford to extend the
increase to all PERS retirees, are obvious.
In summary, the SB 656/HB 3349 increases are not a"windfall" under any
understanding of that term. Any suggestion that they are is spurious and only made
to try to make the legislature's decision to take them away look more appealing.
III. SB 822 violates non-residents PERS retirees' contractual rights.
A. Introduction
In his opening brief, petitioner asserts that SB 822's reduction in the
retirement benefits of non-resident PERS retirees violates their "contractual rights"
by taking away benefits that the legislature had promised in SB 656 and HB 3349.
The legislature had used mandatory "shall" language with respect to the payment
of the increased benefits and had placed the increased benefits provisions in the
PERS statutes, both of which under Hughes v. State of Oregon, 314 Or 1, 838 P2d
1018 (1992), signified "promissory" intent. POBr 46-47. As a second argument,
petitioner asserts that even assuming PERS retirees had no contractual right to the
increase, by targeting and limiting the take-away to non-resident retirees, the
legislature violated the principle of "residence neutrality" in the payment of gross
retirement benefits that inheres in the PERS contract. POBr 51-53.
Respondents offer no response to petitioner's "residence neutrality"
argument. The state offers the following in response to petitioner's "contractual
entitlement" argument: 1) no consideration could support the allowance increases
because they were offered to existing retirees; and 2) HB 3349 on its face and its
6
legislative history demonstrate that it created no "contractual rights." SBr 40-44.
LOC says simply in response to an argument by petitioner Jones that the legislative
history upon which he relies does not satisfy the requisite "clear and unambiguous"
test. LABr 80-81
5
fn 40. The school districts argue SB 656 did not contain an
"unambiguous" promise of benefit increases and was not intended to have those
benefits be paid to persons who paid no state income tax (i. e. non-residents).
SDABr 101-02. They echo the state's argument that HB 3349 "made clear" that it
conferred no contract rights to increased benefits.
After reviewing respondents' arguments, as well as petitioner's own
arguments, one thing is clear: those arguments do not fully account for the unique
circumstances that surrounded the legislature's enactment of SB 656 and HB 3349,
including the critical amendments enacted in Oregon Laws 1997, chapter 175 ("HB
2034") (collectively the "remedial statutes"). Without taking those circumstances
into account, a proper analysis of what the legislature intended to accomplish --
and what it actually accomplished -- in enacting those statutes cannot occur. The
ultimate search, after all, is to discern the legislature's intent. Strunk v. PERB, 338
Or 145, 175, 108 P3d 1058 (2005).
Petitioner will attempt in this portion of the reply brief to set out those
7
circumstances, which, petitioner submits, demonstrate that the legislature intended
8
to and did make the increased benefits provided in the remedial statutes part of the
PERS contract. Specifically, those circumstances demonstrate the following:
first, the legislature intended that the remedial statutes be offered as a package and
accepted by the Stovall plaintiffs as a final and "complete remedy" for the
impairment/breach of the tax exemption term and obligation of the PERS contract
recognized in Hughes; second, the remedy that was offered and accepted did not
take the form of "damages" for breach of the tax exemption obligation, but was,
rather, in the form of a substitute for or replacement of the tax exemption term and
obligation; third, the effect of that substitution or replacement was twofold, in that
it 1) eliminated the tax exemption as a term and obligation of the PERS contract,
and 2) avoided further breaching of that contract; and fourth, the nature of the
obligation that the substituted term imposed was to pay increased benefits to all
PERS retirees, regardless of their individual personal income tax obligations to the
State of Oregon.
B. Circumstances
1. Hughes and its effect
In 1991 the legislature repealed the tax exemption for PERS .retirement
benefits by leaving in place language exempting PERS benefits from taxation but
adding an amendment stating that the exemption did not apply to personal income
taxation of PERS benefits. Or Laws 1991, ch 823, 1. See Hughes, 314 Or 10.
The legislature also repealed ORS 316.680(1)(d) (1989) which had required the
Department of Revenue to subtract PERS benefits in calculating PERS retirees'
income subject to Oregon taxation. Ibid.
In response to the legislature's repeal of the personal income tax exemption
for PERS benefits, the court in Hughes held: 1) that PERS was a contract and that
the tax exemption was a term of the PERS contract; 2) that the obligation of that
term was to exempt PERS benefits that have accrued and are accruing for work
already performed; 3) that the legislature's repeal of the tax exemption impaired
that obligation of the contract; and 4) the legislature's further elimination of the
provision declaring PERS benefits not subject to personal income taxation
breached the contractual obligation. The court left it to the legislature to craft an
appropriate remedy in response to the court's decision. 314 Or 33, fn 36.
As matters stood after Hughes, the statute exempting PERS benefits from,
inter alia, personal income taxation, remained an obligation of the PERS contract;
Oregon Laws 1991, ch 823, 1, providing that this statute did not apply to the
personal income taxation of PERS benefits, impaired that contract as to benefits
earned based on work performed prior to 1991 and was void (although it was
codified in and remains subsection (2) of ORS 238.445) ; and the statute repealing
the provision declaring PERS benefits not subject to personal income tax was a
9
10
breach of the PERS contract because it had the effect of subjecting PERS benefits
to taxation.
2. Chess/Stovall and HB 3349
The 1993 legislature took no action to provide a Hughes remedy beyond
what the 1991 legislature had provided in SB 656 in the way of a partial offset for
the taxation of PERS benefits. As a result, litigation was begun Chess/Stovall --
to force PERB, the state and public employers to provide an adequate remedy.
In 1995, while the Chess/Stovall litigation was pending, and in the hopes
that the legislation would lead to a settlement of that litigation, the legislature
passed HB 3349 which provided a further increase in retirement benefits. That
statute provided that it was in "compensation for damages" PERS members
suffered or would suffer as a result of taxation of their benefits. HB 3349, 2(1).
The statute required that PERB report separately the increased benefits provided to
the IRS, reflecting that they were being made as a result of the taxation of those
benefits. 2(5). To ensure, however, that the legislation by itself would not
establish any contract rights or claim to those rights, the legislature included a
provision specifying that the bill was not creating any such rights. 2(3). Finally,
the bill provided that benefits provided under the bill would not be paid if the tax
exemption were ever reinstated. 2(2).
3. Chess/Stovall and HB 2034 (1997)
Following passage of HB 3349, the Chess/Stovall litigation still did not
settle. In the 1997 legislative session, Elizabeth Harchenko from the Attorney
General's office testified in support of proposed amendments to HB 2034. By way
of background, she explained that "legislation had been passed and directed a
benefit increase be paid to retirees in lieu of the tax exemption that had been
included as a term of their retirement benefit." Ex 55, p 15 (emphasis added). She
informed the legislature that amendments to that legislation were needed to
effectuate the settlement of the Chess/Stovall litigation. Ibid.' Summarizing that
litigation, she further explained that she
"represented the state * * * and now we are at the place where we are trying
to end the litigation by getting a judgment in place that adopts the
legislation, HB 3349, as amended by these amendments - that is the
condition of the settlementapproved and accepted by the plaintiff class as
adequate compensation for taxation of their retirement benefits. It is a
package deal. These amendments are part of the condition for the
settlement."
Ibid. One such amendment was repeal of the "compensation for damages"
reference in HB 3349, then codified at ORS 238.375(3) (now ORS 238.362(3).
HB 2034, 4. Another was repeal of the provision requiring separate reporting of
the increases to the IRS. Ibid. A third amendment modified a provision of HB
3349 to preclude a new class action from being maintairied "based on a claim for
' She testified that without the amendments, "she does not have a settlement and
will go back to court." Ex 55, p 15.
11
12
damages arising out of the subjecting of benefits paid under this chapter to Oregon
personal income taxation by act of the Legislative Assembly." HB 2034, 4(4)(a).
The legislature passed these and other amendments.
4. Chess/Stovall settlement
Finally, in November, 1997, and after enactment of HB 2034, the
Chess/Stovall litigation settled. The settlement agreement expressly provided that
the plaintiffs "were accepting the remedies" offered in SB 656, HB 3349 and HB
2034 as full and complete satisfaction of their claims. POBr app 23.
C. Questions
Two facts should be undisputed given the foregoing circumstances: 1)
culminating with the adoption of HB 2034, the legislature intended that the
remedial statutes provide a complete remedy for the problems created by the 1991
legislature's attempt to repeal the tax exemption in toto and subjecting PERS
benefits to personal income tax; and 2) the Chess/Stovall plaintiff class "accepted"
the remedies provided in those statutes in satisfaction of their claims in the
litigation.
With that as a starting point, the following questions still must be addressed:
1. In light of plaintiffs' "acceptance" of the remedies in the remedial
statutes, did those statutes :
a. offer to remedy the on-going breach of contract by providing
damages, also on an on-going basis;
b. offer to cure the impairment of the obligation to provide a tax
exemption, by offering to substitute for the tax exemption term of the contract a
term providing for increased benefits, and in doing so, remedy once and for all the
necessity to provide damages for an on-going breach; or
c. Something else?
2. What standard should the court use in deciding what the legislature and
the parties actually achieved?
D. Argument
1. Employing ordinary statutory construction/contract standards
is appropriate in this case.
To quote Hughes, appropriately in this context, the court does not begin with
a"blank slate" in answering the question of the appropriate standard to be applied
in this case. 314 Or 17. This court in Hughes already has applied the "clearly and
unambiguously expressed" intent standard in determining that the tax exemption
was a term of the PERS contract. The question here is not whether the legislature
conferred a benefit that imposed on itself and future legislatures an additional
obligation. Rather, the question is whether in conferring a different benefit it has
imposed a substitute obligation.
13
Thus, in determining whether the state has offered a substitute benefit for a
term of the PERS contract, or something else, the court need not again apply a
"clearly and unambiguously expressed intent" standard. First, no question is posed
of binding future legislatures. Future legislatures already were "bound" to provide
the tax exemption for benefits based on work performed prior to 1991. The benefit
increase legislation imposed no additional burden. In fact, as explained earlier in
section II, from a fiscal standpoint, the state's decision to replace the tax exemption
with taxation of benefits (including taxation of federal retirees' incomes) and a
benefit increase greatly lessened the burden that the tax exemption had imposed.
Second, the unique context of the remedial statutes -- the Hughes decision
and the subsequent Chess/Stovall litigation that the benefit increase legislation was
attempting to resolve requires an examination and determination of what the
parties the legislature and the Chess/Stovall plaintiffs were attempting to
achieve and actually achieved by the passage of those statutes. While employing
the "unambiguous intent" standard is suitable in the typical unilateral contract
setting, here the setting is more in the nature of, if not in fact, a bi-lateral one. It is
undisputed here and unambiguous that the parties intended and were attempting
to finally settle the dispute over what the appropriate, complete remedy should be
in light of Hughes. Applying an "unambiguous intent" standard to the details of
14
that settlement may only serve to distort what would otherwise be the only
practical and sensible, not to mention intended, result.
Even if the court believes here it must focus solely on what the legislature
intended to and did accomplish, the question can be reduced to whether the
legislature intended to stay in continual breach of its obligation to exempt PERS
benefits from taxation, with the consequent continuing duty to remedy that breach,
or whether it intended simply to substitute the tax exemption term and its attendant
obligation with an increase in benefits. That is a simple, straightforward question
of legislative intent, invoking none of the cautionary concerns that underscore the
reasons for the "unambiguous intent" standard that otherwise applies in statutory
contract analyses.
2. Properly construed, the remedial statutes substitute increased
benefits as a new term and obligation for the tag egemption term and
obligation of the PERS contract.
As implied above, unless the remedial statutes are construed as an offer to
substitute a new term and obligation for the tax exemption term and obligation, the
latter remain part of the PERS contract for benefits earned based on work
performed before 1991. That is the clear holdover effect from Hughes. Hughes
declared void and of no effect the provision purporting to repeal the.tax exemption
obligation for PERS benefits based on work performed prior to 1991. Unless,
then, the remedial statutes have replaced the tax exemption term and obligation
15
16
with a substitute term and obligation, the tax exemption term and obligation remain
part of the PERS contract.2 And the necessary corollary to this is that the
legislature's act of subjecting those PERS benefits to personal income taxation
would constitute an on-going breach of the PERS contract, necessitating damages
or at least some form of on-going remedy.
The 19971egislature, at a minimum, cast considerable doubt that it intended
the remedial statutes to constitute damages or the state to be in continual breach of
the PERS contract. HB 2034's amendments deleted any reference to "damages" in
HB 3349, thus strongly indicating that the legislative "offer" submitted to the
a
Chess/S'tovall plaintiffs was not an offer of damages. In addition, the 1997
legislature foreclosed any new action for damages for breach of contract arising
from the taxation of those benefits, again strongly indicating that it did not intend
the remedial statutes to result in an on-going breach of the. PERS contract.
Construing the remedial statutes as resulting in the substitution of increased
benefits as a term and obligation for the tax exemption term and obligation of the
PERS contract, on the other hand, is consistent with the legislature's intent to
prevent an on-going breach necessitating providing "damages" as an on-going
remedy. Construing the remedial statutes as a substitute term means that the tax
Z Although declared void and of no effect as to PERS retirement benefits earned for
work performed prior to 1991, the tax exemption repeal remains codified in ORS
238.445(2).
exemption term would cease to be a part of the PERS contract. ORS 238.445(2),
which eliminates the tax exemption, would no longer be void as to benefits earned
prior to 1991 but would be given full effect. Subjecting PERS retiree benefits
based on work performed before 1991 to the state's personal income tax would
cease being an on-going breach. No need would exist for the legislature to pay on-
going damages.
Moreover, that construction best furthers the legislature's and the
Chess/Stovall parties' intent that the remedial statutes afford a complete remedy.
Construing that remedy as a substitution of one obligation (to pay increased
benefits) for another (to provide a tax exemption) provides a complete Hughes
remedy in this case.
That construction also is consistent with the text of the remedial statutes as
well as the legislative history. As mentioned above and discussed in petitiorler's
opening brief, the legislature used mandatory "shall" language as to payment of the
increased benefits and included the benefit provisions in the PERS statutes, all of
which, as held in Hughes signify promissory intent. The increased benefits
provisions textually, therefore, stand on equal footing with the exemption term,
and a substitution of the former for the latter, is simply the substitution of a
promise for a promise. And the legislative testimony from the Attorney General's
office quoted earlier that the remedial statutes were offered as a package "in lieu
17
18
of' the tax exemption exemplifies the legislative and parties' understanding that
the increased benefits provided in the remedial statutes were, in fact, a substitute
for the tax exemption.
That the legislature actually intended to and did substitute benefit increases
for the tax obligation is supported by its inclusion of the proviso, as amended by
HB 2034 4, that "the increased benefits payable under section 3 of this 1995 Act
* * * shall not be paid in any tax year in which [PERS] retirement benefits * * * are
exempt in whole or in part from Oregon personal income taxation, " and "shall be
reduced proportionately" for any tax year in which those benefits are partially
exempt. The legislature thus made it clear that payment of increased benefits is a
substitute for the tax exemption because they both cannot occur simultaneously
Construing the remedial statutes as providing a substitute term and
obligation renders moot the state's argument that SB 656 and HB 3349 could not
be "contractual" in nature because the "offer," if there was one, was extended to
PERS members already retired and, hence, there was no consideration for the offer.
See, e.g., SABr 23. If what the legislature did was offer to substitute one
obligation for another, this court need not decide whether the state's argument has
any horsepower on its own.3 As Hughes made clear, the state owed the tax
3 Petitioner agrees with the arguments in Moro petitioners' reply brief that the
state's argument has none.
19
exemption obligation to both retirees as well as still-working PERS members who
performed work prior to 1991. Both classes of PERS members were represented in
the Chess/Stovall litigation. Both classes were fully capable of accepting and did
accept the state's offer to substitute the tax exemption obligation for an increased
benefits obligation. Unilateral contract theories regarding offer and acceptance
have no application. That parties to a contract are able to substitute one agreement
for another is well settled. See, e.g., Williston on Contracts, Fourth Ed, 7.37, pp
695-96; Restatement Second Law of Contracts, 89, comment b., and 279.
3. ORS 238.362(3) should not be construed to defeat the
legislature's and the parties' obvious intent.
As mentioned earlier, the state argues that because the remedial statutes at
least, HB 3349 2(3) initially and as left unamended by HB 2034 included the
express proviso that HB 3349 was not creating any contractual rights (ORS
238.362(3)), none could possibly have been created. Petitioner submits, however,
that, as discussed below and in his opening brief, this provision had a limited
purpose and shelf-life which expired when the Chess/Stovall litigation settled.
The legislature inserted 2(3) in HB 3349 to serve a specific purpose: to
ensure that the legislature did not contractually bind itself to the increased benefits
provided by HB 3349 in the event the Chess/Stovall litigation did not settle. That
purpose was fully served when the litigation did finally settle following enactment
of HB 2034 in 1997. To give this provision on-going effect means, in effect, that
the legislature never intended ever to have its Hughes-recognized obligation to
provide a tax exemption replaced with one that would stop the on-going bleeding.
To give this provision on-going effect also would be inconsistent with the Attorney
General's representation to the legislature that the increased benefits were "in lieu
of' the tax exemption, which was a contractual promise. Accordingly, in light of
other language the legislature used in HB 3349, in light of all of the legislative
history, and in light of the context of the legislative proceedings, including the
Chess/Stovall litigation, petitioner submits that ORS 238.362(3) should, in effect,
be deemed moot.4
4 Appropriately, petitioner submits, respondents do not argue that Strunk addressed
and settled the non-contractual nature of the remedial statutes. Petitioners in
Strunk did not argue that the remedial statutes created contractual rights that the
2003 legislation had impaired or breached. Rather, they assumed that ORS
238.375(3) (2009) foreclosed that argument, and argued instead that the 2003
legislation breached their rights under the Chess settlement agreement. Strunk
petitioners' opening brief, pp 50-51. Respondents countered that because the
settlement agreement only contained rights conferred in the remedial statutes, and
because ORS 238.375(3) expressly disavowed the existence of any such rights, the
2003 legislation could not have breached the settlement agreement. Strunk state
defendants' answering brief, pp 73-74. The Strunk court agreed that ORS
238.375(3) "could not be clearer" that the legislature had disavowed the creation of
any contractual rights, and with that, determined that petitioners had "failed to
demonstrate" that the remedial statutes created any contractual rights that the 2003
legislation could breach. Because petitioners did not assert that they had any
contractual rights under the remedial statutes, and, accordingly, did not point to
legislative context or history to try to support that argument, the court's statement
should be limited to its determination that petitioners had "failed to demonstrate"
that the remedial statutes conferred contractual rights, not as a holding that the
remedial statutes did not, as a matter of law, confer those rights.
20
21
Petitioner submits there if this court opines that it must give ORS 238.362(3)
some on-going effect, there is one limited construction that does not undo entirely
what the legislature and the Chess/Stovall class were attempting to achieve. If the
statute has some effect, it should be limited to recognizing that the legislature
retained the right to re-substitute the tax exemption obligation for the increased
benefits obligation, a right implicitly recognized in HB 2034 4(1),5 without
raising an impairment/breach of contract claim. Under this limited construction,
the future legislatures could adjust the respective tax exemption and benefit
increase terms as circumstances warranted, and the Chess/Stovall class would have
obtained the state's promise to do one or the other, but not both. That is, petitioner
submits, the only construction that arguably is consistent with the remaining text,
context and legislative history surrounding the passage of the package of statutes
designed to be a complete remedy for the tax exemption repeal.
4. The nature of the obligation under the substitute term is to pay
increased benefits to all PERS retirees.
Petitioner submits that the foregoing discussion demonstrates that the
remedial statutes (SB 656 and HB 3349, as amended by HB 2034) were offered
and accepted as a substitute for the tax exemption term and obligation of the PERS
5 HB 2034 4(1) prevents or reduces payment of the increased benefits in any year
in which PERS retirement benefits are "wholly" or "partially exempt from Oregon
personal income taxation."
22
contract. The only question left is the nature of the obligation.the remedial statutes
imposed. Specifically here, that question reduces to whether the remedial statutes
intended to offer the benefit increases for work performed prior to 1991 to all
PERS members who performed such work, including those who might, because
they moved out of state after retirement, not pay Oregon income taxes on those
benefits.
Before addressing this question, it should be noted that, as stated in Eckles
v.State of Oregon, 306 Or 380, 397, 760 P2d 846 (1988), the "unambiguous intent"
test or "rule is concerned with the existence of a contractual agreement, rather than
with the extent of the obligation created by an agreement ***." Presumably, then,
an ordinary statutory intent analysis is to be employed in resolving the extent or
nature of the obligation question.
Examining the language of the remedial statutes reveals no indication that
the legislature intended the increased benefits obligation to be limited to PERS
retirees who actually paid state income taxes. And, as discussed earlier and in
petitioner's opening brief, (POBr 9), the legislative history of HB 3349 reveals
clearly that the legislature understood the benefit increases would be paid to
retirees who paid no state income tax because they lived out of state.6
6 That retirees who resided out of state and/or paid no state income taxes would be
receiving benefits under the remedial statutes was noted by this court in both
Ragsdale v. Department ofRevenue, 321 Or 216, 230, 895 P2d 1348 (1995), cert
As mentioned previously, school districts rely on HB 3349, as amended by
HB 2034 4(1), discussed above, that prevents or reduces payment of the increased
benefits in any year in which PERS retirement benefits are "wholly" or "partially
exempt from Oregon personal income taxation." They rely on this provision to
show the legislature never intended to pay increased benefits to non-residents in
the first place, because those residents' retirement benefits are "not subject to"
Oregon income tax. SDABr 70-71. School districts misconstrue HB 2034 4(1).
Petitioner submits that although it may be possible in some circumstances at
least to equate "exempt from taxation" with "not subject to taxation," that is not
even the relevant question in this case. The question here is whether the legislature
intended "exempt from taxation" to include benefits that the legislature in ORS
316.127(9) has determined not to constitute "income derived from sources within
this state" and, for that reason, not to be included in the adjusted gross incomes for
non-residents for purposes of calculating Oregon taxes. Several indicia point to the
conclusion that the legislature did not intend them to have equivalent meaning.
First, HB 2034 4(1) is substantively identical to HB 3349 2(2).
Legislators considering HB 3349 would not have been told by their staff that the
increased benefits under that bill would be paid to non-resident retirees who pay no
den 516 US 1011
5
116 S Ct 5 695 133 Led2d 493 (1995 ) (SB 65 6), and Yogl, 327
Or 193, 206, 960 P2d 373 (1998) (HB 3349).
23
income tax if the "exempt from taxation" provision had been intended to apply to
non-residents. See POBr 9.
Second, reference in HB 2034 4(1) to benefits that are "exempt from
Oregon personal income taxation" is in obvious reference to the "tax exemption"
for all PERS retiree benefits that the legislature eliminated in 1991.
Third, if the legislature had intended that increased benefits not be paid to
retirees who paid no income tax on their retirement benefits because they lived out
of state, it knew how to say so. The same year that the legislature finalized the
language in this statute it enacted the amendments to ORS 316.127(9), providing
that all retirement income "received by a non-resident does not constitute income
derived from sources within this state." Had the legislature intended HB 2034
4(1) to require non-payment of benefits because the legislature has deemed those
benefits not to constitute Oregon source income for tax purposes, it could have
said, and knew how to say, so in that subsection.
Fourth, it is undisputed that, since the increased benefits authorized by the
remedial statutes started being paid, PERB has paid them to retirees living out of
state as well as to in-state retirees. If school districts are correct, then PERB all
these years has been violating the statute and paying out millions of dollars
erroneously: PERB obviously has not construed benefits "exempt from taxation"
to include benefits that the legislature has declared are not Oregon source income
24
for income tax purposes. That interpretation and consistent administrative
application of that interpretation certainly are illuminating here as to what the
legislature intended.
Finally, if school districts were correct, the 2011 and 2013 legislatures
would not have needed to enact Oregon Laws 2011, chapter 653 (requiring non-
payment of benefit increases to non-resident retirees on a prospective only basis)
or SB 822. The requirement not to pay increased benefits to non-residents already
would have been codified in HB 2034.
5. Summary
When the legislature enacted Senate Bill 822, ORS 238.364 and 238.366
contractually obligated PERB to pay increased benefits to all PERS retirees who
had retired prior to January 1, 2012, and who had earned retirement benefits based
on work performed prior to 1991. Senate Bi11822, sections 11-16 direct PERB
not to pay these increased benefits to non-resident PERS retirees, and thus either
direct PERB to breach its contractual obligation to those retirees or they remove
the obligation itself thereby impairing an obligation of the PERS contract.
CONCLUSION
For the reasons set forth above and in petitioner's opening brief, petitioner
submits that sections 11-17 conflict with federal law and are invalid. Petitioner
25
further submits that Senate Bill 822 and Senate Bill 861 impair the obligations of
26
or breach the PERS contract. Petitioner requests that the court grant such relief as
the court deems appropriate.
Respectfully submitte ,
~
r
Michael D. Reynolds
Petitioner pro se
CERTIFICATE OF COMPLIANCE WITH BRIEF
LENGTH AND TYPE SIZE REQUIREMENTS
I certify that (1) this brief complies with the word-count limitation in ORAP
5.05(2)(b) and (2) the word count of this brief (as described in ORAP 5.05(2)(a)) is
5,998 words.
I further certify that the size of the type in this brief is not smaller than 14
point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).
~.
Michael D. Reynolds
Petitioner pro se
CERTIFICATE OF FILING AND PROOF OF SERVICE
I certify that I filed the original Petitioner Reynolds' Reply Brief with the State
Court Administrator, Records Section, at 1163 State Street, Salem, Oregon, on September
19, 2014, by priority mail, postage prepaid.
I further certify that on September 19, 2014, I served true copies of Petitioner
Reynolds' Opening Brief upon the party or parties listed below, by first class or priority
mail, postage prepaid, and addressed as follows:
GREGORY A. HARTMAN #741283
ARUNA A. MASIH #973241
210 SW Morrison St.
Suite 500
Portla.nd, OR 97204-3149
Telephone: 503-227-4600
Attorneys for Petitioners Moro,
Domenigoni, Custer, Hawkins, Arken,
Ditter, O'Kief, Smith, Johnson, Clouser,
Silence, Vickery and Voek
GEORGE A. RIEMER
23206 N.Pedregosa Drive
Sun City West, AZ 85375
Telephone: 623-23 8-5039
Petitioner pro se
WAYNE S. JONES
18 North Foachill Road
North Salt Lake, UT 84054
Telephone: 801-296-1552
Petitioner pro se
ELLEN ROSENBLUM #753239
Attorney General
ANNA M. JOYCE #013112
Solicitor General
KEITH L. KUTLER #852626
Assistant Attorney General
MATTHEW J.IVIERRITT #122206
Assistant Attorney General
MICHAEL A. CASPER # 062000
Assistant Attorney General
400 Justice Building
Salem, Oregon 97310
Telephone: 503-378-4402
Attorneys for State Respondents
HARRY AUERBACH #821830
Office of the City Attorney
1221 SW 4th Avenue, Ste 430
Portland, OR 97204
Telephone: 503-823-4047
Attorney for Respondent City of
Portland
WILLIAM F. GARY #770325
SHARON A. RUDNICK #830835
HARRANG LONG GARY RUDNICK
PC
360 E. lOth Ave., Suite 300
Eugene, OR 97401
Telephone: 503-242-0000
Of 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
DANIEL B. ATCHISON #040424
Office of City Attorney
555 Liberty Street SE Rm 205
Salem, OR 97301
Telephone: 503 588-6003
Attorney for Respondent City of Salem
EUGENE J. KARANDY II #972987
Office of the County Attorney
Linn County Courthouse
104 SW Fourth Avenue, Room 123
Albany, OR 97321
Telephone: 541 967-3 840
Of Attorneys for Respondent Linn
County
LISA M. FRIELEY #912763
Oregon School Boards Association
PO Box 1068
Salem, OR 97308
Telephone: 503 588-2800
Of Attorneys 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
Of Attorneys for Respondent Linn
County
EDWARD F. TROMPKE #843653
Jordan Ramis PC
Two Centerpointe Drive, 6th Floor
Lake Oswego, OR 97035
Telephone: 503 598-5532
Attorney for Respondent Tualatin Valley
Fire & Rescue
W. MICHAEL GILLETTE #660458
LEORA COLEMAN-FIRE 9113581
SARA KOBAK #023495
WILLIAM B. CROW #610180
SCHWABE WILLIAMSON & WYATT
PC
1211 SW 5th Ave Suite 1900
Portland, OR 97204
Telephone: 503-222-9981
Of Attorneys for Intervenor League of -
Oregon Cities
SARAH K. DRESCHER #042762
Tedesco Law Group
3021 NE Broadway
Portland, OR 97232
Telephone: (866) 697-6015
Of Attorneys for Amicus Curiae IAFF
THOMAS A. WOODLEY
Douglas L. Steele
WOODLEY & McGILLIVARY
1101 Vermont Ave, N. W.
Suite 1000
Washington, D.C. 20005
Phone: (202) 833-8855
taw@wmlaborlaw.com
dls@wmlaborlaw.com
Of Attorneys for Amicus Curiae IAFF
CRAIG A. CRISPIN #82485
Crispin Employment Lawyers
1834 SW 58th Avenue, Suite 200
Portland, OR 97221
Telephone: (503) 293-5759
Attorney for Amicus Curiae AARP
' c
~
Michael D. Reynolds
Petitioner pro se
SEP 2 2 2014
MICHAEL D. REYNOLDS
Attorney at Law
8012 Sunnyside Ave N.
Seattle, Washington 98103
206-910-6568
EMAIL mreynoldsl4@comcast.net
September 19, 2014
Appellate Court Administrator
Appellate Court Records Section
1163 State Street
Salem, OR 97301-2563
Re: Reynolds v. Public Employees Retirement Board, State of Oregon; and John
Kitzhaber, Governor, State of Oregon. Supreme Court Nos. S061454, S061452 (Control)
Dear Administrator:
Enclosed for filing please find the original of petitioner Reynolds' Reply Brief for filing
in the above captioned matter.
Enclosed for filing please also fmd petitioner Reynolds' Motion for Leave to Present Oral
Argument pursuant to ORAP 6.10(4)
Thank you for your attention to this matter.
Very truly yours,
!
2Z Z
~~~~ l
1Vhchael D. Reynolds
Petitioner pro se
MDR:mr
Encl
Cc: Gregory A. Harhnan
Aruna A. Masih
George A. Riemer
Wayne S. Jones
Ellen Rosenblum
Anna M. Joyce
State Court Administrator
September 19, 2014]
Page 2
Keith L. Kutler
Matthew J. Merritt
Michael A. Casper
Harry Auerbach
William F. Gary
Sharon A. Rudnick
Daniel B. Atchison
Eugene J. Karandy
Lisa M. Friely
Rob Bovett
W. Michael Gillette
Leora Coleman-Fire
Sara Kobak
William B. Crow
Sarah K. Drescher
Thomas A. Woodley
Craig A. Crispin
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TO: State Court Adminis trator
Records Section
Supreme Court Building
1163 State Street
Salem, OR 97301-2563