Sirois v. PERS ( 2024 )

No. 766 October 30, 2024 731
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Molly SIROIS,
Plaintiff-Appellant,
v.
STATE OF OREGON,
acting by and through the Governor,
State Treasury, Investment Council,
and Public Employee Retirement System,
Defendant-Respondent.
Lane County Circuit Court
22CV31334; A181139
Karrie K. McIntyre, Judge.
Submitted September 11, 2024.
Molly Sirois filed the brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.
HELLMAN, J.
Affirmed.
732 Sirois v. PERS
HELLMAN, J.
Plaintiff appeals a general judgment of dismissal
entered after the trial court granted defendant’s motion for
summary judgment. In a single assignment of error, plain-
tiff argues that the trial court erred when it granted defen-
dant’s motion on three grounds. We conclude that the trial
court did not err when it determined that the statutory time
period for changing plaintiff’s Public Employees Retirement
System (PERS) benefit under ORS 238.305 had passed and
that the statute barred her claim. Moreover, plaintiff does
not challenge the court’s alternative grounds for granting
summary judgment. We further conclude that plaintiff did
not preserve her argument that the PERS contract benefit
election term is unconscionable and plaintiff does not seek
plain error review. As a result, we affirm.
“We review a trial court’s grant of summary judg-
ment for errors of law and will affirm if there are no genu-
ine disputes about any material fact and the moving party is
entitled to [prevail] as a matter of law.” Beneficial Oregon, Inc.
v. Bivins, 313 Or App 275, 277, 496 P3d 1104 (2021) (internal
quotation marks omitted); ORCP 47 C. No genuine issue of
material fact exists when, viewing the evidence in the light
most favorable to the adverse party, “no objectively reason-
able juror could return a verdict for the adverse party.” ORCP
47 C. We state the facts in accordance with that standard.
Plaintiff retired in 2017 and elected to receive a
PERS benefit under ORS 238.305(1) (Option 1). In 2022,
plaintiff filed a complaint against the state, alleging that
in 2022 she discovered that the Oregon Public Employees
Retirement Fund (OPERF) portfolio contained “numerous
* * * holdings linked to harms to people and places.” Plaintiff
further alleged that she asked PERS “if [she] could take a
lump sum payout of [her] benefit and terminate [her] PERS
account” and was informed that ORS 238.305 prohibited
changes to her benefit option. Because “ORS 238.305 binds
[her] to PERS and OPERF for the rest of [her] life” in vio-
lation of Article I, section 3, of the Oregon Constitution,1
1
Article I, section 3, provides, “No law shall in any case whatever control the
free exercise, and enjoyment of [religious] opinions, or interfere with the rights of
conscience.”
Cite as 335 Or App 731 (2024) 733
plaintiff “demand[ed] the option for a total lump-sum pay-
ment of [her] retirement benefit or the option to divest [her]
earnings from any and all OPERF holdings linked to harms
to people and places.”2
Defendant filed a motion for summary judgment
and made four arguments. Defendant argued that (1) plain-
tiff lacked standing; (2) the statute of limitations barred
plaintiff’s claim; (3) plaintiff failed to establish that the
right of conscience provision of Article I, section 3, of the
Oregon Constitution exempts her from the requirements of
ORS 238.305; and (4) federal law prohibited the court “from
making the extraordinary departure from PERS law” that
plaintiff sought.
The trial court granted summary judgment in favor
of defendant. Although the trial court concluded that plain-
tiff had standing, it determined that plaintiff’s claims were
time barred. The court further determined that plaintiff
failed to “show that the right of conscience provision in the
Oregon Constitution requires an individual exemption for
her,” and that the Internal Revenue Code prevented the trial
court from ordering changes to plaintiff’s monthly benefit
option. Accordingly, the trial court determined “that there
[were] no significant facts in dispute” and granted defen-
dant’s motion. This appeal followed.
We conclude that the trial court did not err when it
determined that ORS 238.305 bars plaintiff’s claim.
“Upon retirement, a PERS member is entitled to receive
a ‘service retirement allowance.’ ORS 238.300. Within 60
days of receiving the first benefit payment, a PERS mem-
ber can elect to convert his or her ‘service retirement allow-
ance’ into a ‘service retirement annuity.’ ORS 238.305(1). A
retired member may select from among six optional forms
of service retirement annuities under ORS 238.305(1). * * *
2
We observe that plaintiff’s opening brief explains that she “misstated the
relief she seeks by using [the] terminology contained in ORS 238.305” and that
she instead “seeks to withdraw what remains of her 2017 lump sum retirement
benefit still invested in OPERF.” Even if we could consider that distinction, it
would not be material to our analysis. See ORS 19.365(2) (“The record on appeal
consists of those parts of the trial court file, exhibits and record of oral proceed-
ings in the trial court that are designated under ORS 19.250.”).
734 Sirois v. PERS
“Option 1 provides the PERS member the largest
monthly benefit, but it is paid only for the lifetime of the
member.”
English v. PERB, 230 Or App 506, 508, 216 P3d 342 (2009).
Here, plaintiff retired in 2017, chose Option 1, then
sought a lump sum payment and to terminate her account in
2022. However, ORS 238.305(5) required plaintiff to make
any changes to her election within 60 days of her first ben-
efit payment. See ORS 238.305(5) (providing that a member
may change “the election of an option or any other election
or designation * * * within 60 days after the date of the first
benefit payment”). As a consequence, the trial court did not
err when it determined that “[t]he statutory time period for
[plaintiff] to request the lump sum payment [had] passed.”
Although plaintiff argues on appeal that her claim
“sounds in contract” and that the trial court’s “findings on
[the] statute of limitations and the conscience provision
requirement do not apply to the claim of contractual uncon-
scionability,” we do not reach those arguments because plain-
tiff did not raise them before the trial court. Indeed, plain-
tiff acknowledges that she “raises a new issue on appeal.”
As a result, that issue is not preserved for our review. See
ORAP 5.45(1) (“No matter claimed as error will be consid-
ered on appeal unless the claim of error was preserved in
the lower court and is assigned as error in the opening brief
in accordance with this rule[.]”). Plaintiff does not ask us to
review for plain error, so we do not engage in that analysis.
See State v. Ardizzone, 270 Or App 666, 673, 349 P3d 597,
rev den, 358 Or 145 (2015) (“[W]e ordinarily will not proceed
to the question of plain error unless an appellant has explic-
itly asked us to do so[.]”).
Moreover, the trial court granted summary judg-
ment to defendant on additional grounds, which plaintiff
does not challenge. When a trial court’s grant of summary
judgment is based on alternative grounds, “the nonmoving
party * * * must challenge all of those grounds successfully
on appeal in order to obtain reversal.” City of Troutdale v.
Palace Construction Corp., 293 Or App 785, 788, 429 P3d
1042 (2018). Because plaintiff does not challenge all of the
trial court’s alternative grounds for granting summary
Cite as 335 Or App 731 (2024) 735
judgment, “we must affirm the court’s grant of summary
judgment to [defendant].” Id. at 790.
Affirmed.