D.C. No. CV-06-03058-PA Medford.
CERTIFYING A QUESTION TO THE SUPREME COURT OF OREGON
Before: Susan P. Graber, Raymond C. Fisher, and Milan D. Smith, Jr., Circuit Judges.
Plaintiffs, who are former employees of Defendant City of Medford, argue that the City's policy of denying health insurance coverage to retirees violates Oregon Revised Statutes section 243.303, City Resolution No. 5715, and the Due Process Clause of the United States Constitution. Plaintiffs contend that section 243.303 and Resolution No. 5715 confer on them a vested property interest in health care benefits after retirement, of which the City deprived them without due process of law. Because the question whether the statute and Resolution confer on Plaintiffs a protected property interest raises an important and unresolved issue of Oregon law that will dispose of the only remaining federal claim on appeal, we respectfully certify a question to the Supreme Court of Oregon. We offer the following statement of relevant facts and explanation of the "nature of the controversy in which the question[ ] arose." Or. Rev. Stat. § 28.210.
A. Factual and Procedural History
In 1981, the Oregon State Legislative Assembly enacted Oregon Revised Statutes section 243.303(2), which read, in pertinent part:
The governing body of any local government that contracts for or otherwise makes available health care insurance coverage for officers and employees of the local government, may, in so far as and to the extent possible, make that coverage available for retired officers and employees of the local government and for spouses and unmarried children under 18 years of age of those retired officers and employees. The governing body may prescribe reasonable terms and conditions of eligibility and coverage, not inconsistent with this section, for making that cover- age available. The local government may agree to pay none, part or all of the cost of making that coverage available.
1981 Or. Laws page no. 258 (emphasis added).
In 1985, the statute was amended. The most significant change was that the legislature replaced the discretionary word "may" with the mandatory word "shall." The statute currently reads:
The governing body of any local government that contracts for or otherwise makes available health care insurance coverage for officers and employees of the local government shall, insofar as and to the extent possible, make that coverage available for any retired employee of the local government who elects within 60 days after the effective date of retirement to participate in that coverage and, at the option of the retired employee, for the spouse of the retired employee and any unmarried children under 18 years of age. The health care insurance coverage shall be made available for a retired employee until the retired employee becomes eligible for federal Medicare coverage, for the spouse of a retired employee until the spouse becomes eligible for federal Medicare coverage and for a child until the child arrives at majority, and may, but need not, be made available thereafter. The governing body may prescribe reasonable terms and conditions of eligibility and coverage, not inconsistent ...