Indeks
The state’s lawyers have been very busy this week. The Department of Justice and the Legislative Counsel’s Office both released documents that dealt with Gov. John Kitzhaber’s proposal to cap the cost of living adjustment for PERS retirees.
The Oregonian also wrote a story about these documents, and there’s one point in it that I want to expand on:
A legal opinion allows a lawyer to say, “Given x, y and z, the court would probably rule This Way.” A legal analysis allows them to say, “You could defend this proposal This Way and here are the arguments that could be made.”
The DOJ did not tell Kitzhaber’s office that his reforms would likely pass. It said it had a strategy to defend them. The DOJ lawyers didn’t give him an opinion either way. And keep in mind, the DOJ has to defend these reforms whether they think they will pass or not. They can’t say, “Sorry governor, we think the court’s going to overrule this, so we’re not going to defend it.” They are hired to represent the government whether they think they’ll be successful or not.
The legislative counsel’s office, on the other hand, plays a different role. They advise the legislature, but they don’t defend anything in court, so they have more wiggle room to actually give an opinion and they did. Counsel Dexter Johnson told Speaker Tina Kotek that it seemed unlikely these reforms would hold up in court.
It’s important not to confuse opinion with analysis. The analysis can be done impartially, without the lawyer speculating on an outcome. The opinion, on the other hand, actually offers just that — an opinion.
There will be more of these documents coming as the legislators bat around ideas to balance the budget. The lawyers will weigh in often, but they will only sometimes give an opinion.
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The Oregonian also wrote a story about these documents, and there’s one point in it that I want to expand on:
That statement isn’t strictly correct, and it’s important to understand why. The DOJ didn’t offer an opinion on the PERS reforms; it offered a legal analysis. The document explained how to legally defend the PERS reforms should the legislature pass them. It didn’t offer an opinion on whether those arguments would succeed. In fact, the writer of the analysis offered up several adjustments to the reforms that would make them more legally palatable.The speaker’s memo comes on the heels of a Department of Justice analysis delivered to the governor’s office early this week that suggested just the opposite: that there are several reasons why the governor’s proposal could pass legal muster. (Emphasis mine.)
A legal opinion allows a lawyer to say, “Given x, y and z, the court would probably rule This Way.” A legal analysis allows them to say, “You could defend this proposal This Way and here are the arguments that could be made.”
The DOJ did not tell Kitzhaber’s office that his reforms would likely pass. It said it had a strategy to defend them. The DOJ lawyers didn’t give him an opinion either way. And keep in mind, the DOJ has to defend these reforms whether they think they will pass or not. They can’t say, “Sorry governor, we think the court’s going to overrule this, so we’re not going to defend it.” They are hired to represent the government whether they think they’ll be successful or not.
The legislative counsel’s office, on the other hand, plays a different role. They advise the legislature, but they don’t defend anything in court, so they have more wiggle room to actually give an opinion and they did. Counsel Dexter Johnson told Speaker Tina Kotek that it seemed unlikely these reforms would hold up in court.
It’s important not to confuse opinion with analysis. The analysis can be done impartially, without the lawyer speculating on an outcome. The opinion, on the other hand, actually offers just that — an opinion.
There will be more of these documents coming as the legislators bat around ideas to balance the budget. The lawyers will weigh in often, but they will only sometimes give an opinion.
Sumber : http://go.girilaya.com/ylbu9g?utm_campaign=Feed%3A+GirilayaRealGroups+(GIRILAYA+REAL+GROUPs)&utm_medium=email.Addedby@dwinurmijayanto&utm_source=forum.girilaya.com
