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Latest Update - August 9, 2017

As I reported in last month's update, the Okrie class-action lawsuit is now docketed with the U.S. Supreme Court as Case No. 17-34.  Although the Court requested that the State of Michigan file a Response by August 4, 2017, the Attorney General sent a letter dated August 4 with a "waiver of the right to file a response to the petition for writ of certiorari unless one is requsted by the Court."   As I said last time, I will keep up the postings about the lawsuit until the U.S. Supreme Court's decides whether to grant or deny the Petiton, or order the State of Michigan to file a Response, which may happen on September 25, 2017 or sometime thereafter.  I will let you know as soon as possible whether this lawsuit stays alive or comes to an end.

As always, I would like to thank the State Employees Retirement Association (SERA) for their long-standing support of this lawsuit, particularly Bob Kopasz and Mary Pollack.  On August 4, I gave a presentation to the SERA executive committee regarding the Petition for a Writ of Certiorari in the U.S. Supreme Court.  As I stated in the Petition, I believe that the Okrie case is a continuation of the Davis litigation that was before the U.S. Supreme Court nearly 30 years ago.  In fact, throughout the Okrie case and in the Petition, I have explicitly adopted the position that the State of Michigan took in the Davis litigation in defense of the tax-exemptions as deferred compensation for years of governmental service to the State or one of its political subdivisions and an integral part of the retirement benefits. As you know, the State of Michigan effectively repudiated that position in the Okrie case. Perhaps that is one reason why the State of Michigan waived its right to respond to the Petition, since it would be seen as playing "fast and loose" with the U.S. Supreme Court.  At least I am holding out hope that the U.S. Supreme Court sees it that way.

As a legal matter, I presented the case to the U.S. Supreme Court as violations of the principles of retroactivity stated in Landgraf v. USI Film Prods, 511 U.S. 244 (1994) and the principles underlying the Rule of Law.    To my mind, this case is about fundamental principles of law, which were breached when the State applied 2011 PA 38 to Mr. Okrie and similarly situated retired state and public school employees who were born after 1945 and who retired before the effective date of the Act on January 1, 2012.  It seems to me that the U.S. Supreme Court should be interested in such basic legal principles and ensure that they are uniformly followed in this country if we want to live under the Rule of Law.

In any case, the retroactivity argument incorporates other arguments that I made throughout the lawsuit regarding "contractual reliance interests" in the tax-exemptions upon making irrevocable retirement decisisons, as well as violations of the Contracts Clause, the Takings Clause and the Due Process Clause if the Act is applied retroactively to Mr. Okrie et al. One thing that stands out is my unrebutted contention that the U.S. Supreme Court's decision in Indiana v Brand, 303 U.S. 95 (1938) prevails over the Michigan Supreme Court's decisison in Studier v Mich.Pub. Sch. Employees' Retirement Bd., 472 Mich. 642 (2005) under the Supremacy Clause of the U.S. Constitution.  In Brand, the U.S. Supreme Court held that "a legislative enactment may contain provisions when accepted as the basis of actions by individuals, become contracts between them and the State or its subdivisions within the protection of Art. I, sec. 10 [the Contracts Clause]." (Interestingly, Brand involved the legislative impairment of a teacher's contractual tenure rights.)   In the Petition, I expressly argue that the "legislative enactment" exempting defined-benefit pensions of retired state and public school employees from state and local taxation was the "accepted basis of actions" by Mr. Okrie et al. in making irrevocable retirement decisions and calculating their total retirement benefits, and thus became contracts between them and the State of Michigan within the protection of the Contracts Clause.  I believe that I am absolutely correct on this legal point; the open question is whether the U.S. Supreme Court is willing to enforce its own decisions and rulings under the Supremacy Clause.  I should certainly hope so.

Finally, as always, I thank everyone for their kind support over the years, and my sincere appreciation for your continued monetary contributions to this cause.

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