# Strunk v. Public Employees Retirement Board

> Oregon Supreme Court · March 8, 2005 · 338 Or. 145

URL: https://www.frixlaw.com/law-library/cases/9503367

## Case

- **Full name:** Richard STRUNK, Donald Reed, Carol Booker, Larry Blumenstein, Alan Lively, Merlene Martin, William Smee, Denise Jacobsen, and Susanna Rhodes, Petitioners, v. PUBLIC EMPLOYEES RETIREMENT BOARD, State of Oregon, State of Oregon by and Through the State Board of Higher Education, North Douglas School District, Deschutes County, Portland School District, City of Salem, South Lane School District, and Oregon Health Sciences University, Respondents; Pamela BURT, Nori J. McCann-Cross, Gerald Frost, Nancy B. Miller, Bradd a Swank, Linda Zuckerman, Vicky J. Johnson, Stephen D. Krohn, and Claudia L. Howells, Petitioners, v. PUBLIC EMPLOYEES RETIREMENT BOARD, Marion County, Oregon Department of Justice, Oregon Department of Transportation, Oregon Judicial Department, and State of Oregon, Respondents; Dave DAHLIN, Petitioner, v. PUBLIC EMPLOYEES RETIREMENT BOARD (Dawn Morgan, Janice Deringer, Mark Gardiner, Jeanne Garst, Glenn Harrison, Todd Schwartz, George Russell, Steven Bjerke), Theodore Kulongoski, Governor, State of Oregon, Respondents, and LEAGUE OF OREGON CITIES and Oregon School Boards Association, Intervenors; Daniel EVANS, Wayne Dykes, Charles French, Jim Botwinis, Gary Harkins, and James Michaud, Petitioners, v. CITY OF GRANTS PASS, Josephine County, Multnomah County, the City of Eugene, and the State of Oregon, Respondents; Martha SARTAIN, Petitioner, v. PUBLIC EMPLOYEES RETIREMENT BOARD, State of Oregon, and State of Oregon, by and Through the Oregon Department of Transportation, Respondents, and LEAGUE OF OREGON CITIES and Oregon School Boards Association, Intervenors; Michael O. WHITTY, Dennis Ulsted, and H. Thomas Andersen, Petitioners, v. PUBLIC EMPLOYEES RETIREMENT BOARD and SAIF Corporation, Respondents, and LEAGUE OF OREGON CITIES and Oregon School Boards Association, Intervenors
- **Court:** Oregon Supreme Court
- **Decided:** March 8, 2005
- **Citations:** 338 Or. 145; 108 P.3d 1058; 2005 Ore. LEXIS 104
- **Precedential status:** Published
- **Opinion:** Concurrence by Balmer
- **Judges:** Muniz, De Muniz, Balmer, Durham, Riggs, Kistler
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503367

## How later opinions describe it (automated extraction)

- concluding a statute was not a part of the statutory PERS contract where the text and “stat- utory context do not establish clearly and unambiguously that the legislature intended” the statute to be a promise to PERS members
- stating that employer contribu- tion rates are based in part on “the PERS actuary’s best estimate of the amount needed to pay service retirement allowances to current members in the future”
- stating that employer contribution rates are based in part on “the PERS actuary’s best estimate of the amount needed to pay service retirement allowances to current members in the future”
- noting that a “patently administrative provision” should not be treated as contractual because the legislature failed to provide clear and unmistakable contractual intent, even though the change may affect actual benefits received by some members
- rejecting “claims that the redirection of PERS members’ future contributions to the IAP, as set out in the 2003 PERS legislation, either breaches or impairs a contractual obligation of the PERS contract” (emphasis added)

## Opinion text

BALMER, J.,
concurring.
I join in each aspect of the majority’s analysis and disposition of these proceedings, including those that follow from this court’s decision in Oregon State Police Officers’ Assn. v. State of Oregon, 323 Or 356 , 918 P2d 765 (1996) (OSPOA). We appropriately have declined to revisit the questions of statutory interpretation and legislative intent that OSPOA addressed and decided. Our respect for that precedent, however, should not be misread as an endorsement of either the result or the reasoning in that case.
To the contrary, in my view, the court in OSPOA lost sight of the polestar of statutory contractual analysis: clear, unambiguous, and unmistakable promissory intent. See Hughes v. State of Oregon, 314 Or 1, 17 , 838 P2d 1018 (1992) (“a contract will not be inferred from * * * legislation unless it unambiguously expresses an intention to create a contract”); Campbell et al. v. Aldrich et al., 159 Or 208, 213-14 , 79 P2d 257 (1938) (legislature’s intention “to create contractual obligations * * * must clearly and unmistakably appear”; surrender of legislative control over vital public matters “cannot be established by mere implication”). Having lost that bearing, the court in OSPOA proceeded to misconstrue the “assumed interest rate” provision of ORS 238.255 — a patently administrative provision intended to smooth fluctuations in PERS fund earnings — as both a material and a perpetual aspect of the PERS contract. See OSPOA, 323 Or at 377-78 (construing “assumed interest rate” provision). Oregon’s public employers and taxpayers must live with the effect of OSPOA’s error for some time to come. Our appropriate respect for stare decisis in the interpretation of statutes, and more particularly of statutory contracts on which public employees have relied, compels as much. OSPOA, however,, ought not have any more vitality than that.
I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503367. Public record. Not legal advice.