S057330, Opinion — Doyle v. City of Medford

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On certified question from the United States Court of Appeals for the Ninth
Circuit, certification order dated May 4, certification accepted June 4, argued
and submitted September 30, 2009, certified question answered
February 4, 2010

Ronald DOYLE;
Robert Deuel;
Benedict Miller;
and Charles Steinberg,
Plaintiffs,
v.

CITY OF MEDFORD,
an Oregon municipal corporation;
and Michael Dyal,
City Manager, City of Medford,
in his official capacity
and as an individual,
Defendants.
(USDC CV-06-03058-PA; USCA 07-35753; SC S057330)
227 P3d 683

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# En Banc

Stephen L. Brischetto, Portland, argued the cause and
filed the brief for plaintiffs. With him on the brief was George
P. Fisher.

Robert E. Franz, Jr., Springfield, argued the cause and
filed the brief for defendants.

Anil S. Karia and Michael J. Tedesco, Lake Oswego, filed
a brief for amicus curiae International Brotherhood of
Teamsters Local 223.

BALMER, J.

The certified question is answered.

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BALMER, J.

This case is before the court on a certified question of
Oregon law from the United States Court of Appeals for the
Ninth Circuit. See Doyle v. City of Medford, 565 F3d 536 (9th
Cir 2009) (certifying question); ORS 28.200 - 28.255 (grant-
ing authority to answer certified questions and describing
procedure). Plaintiffs are retired employees of the City of
Medford (the city) who brought an action against the city in
federal district court, seeking damages and other relief for
the city's actions with respect to making health care insur-
ance coverage available to them. Plaintiffs argued that ORS
243.303(2), which provides that local governments "shall,
insofar as and to the extent possible," make the same health
care insurance coverage available to retired employees as
they make available to current employees, creates a property
interest. They claimed that the city deprived them of that
property interest without due process of law when it failed to
make available to them the same health insurance coverage
that it makes available to current employees.

The district court granted summary judgment for
the city, concluding that ORS 243.303(2) did not create a
property interest. Plaintiffs appealed, and, in the process of
considering that appeal, the Ninth Circuit certified to this
court, and we accepted, the following question:

"What amount of discretion does [ORS] 243.303 confer
on local governments to determine whether or not to pro-
vide health insurance coverage to their employees after
retirement?"

For the reasons that follow, we conclude that ORS 243.303(2)
creates an obligation for local governments to make health
insurance coverage available for retirees; however, we also
conclude that the obligation is limited to making coverage
available "insofar as and to the extent possible," and that,
depending on the circumstances, the local government may
be excused entirely from its obligation if it can demonstrate
that it was not possible, under the statutory standard, to
make coverage available.

We take the facts from the Ninth Circuit's order cer-
tifying the question to this court and from the record. Before

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1990, the city permitted all employees to elect to continue
their health insurance coverage upon retirement. In 1990,
the city negotiated with the police officers' union for a health
insurance program administered by the Oregon Teamsters
Employers Trust (OTET). The contract between the city and
OTET provides that retired city employees are not allowed to
participate in the Trust's Retiree Plan. OTET was nonethe-
less "willing" to provide health insurance coverage to retired
Teamsters members if the active members of the Teamsters
voted for such coverage. The members of the Teamsters have
not voted to provide health insurance coverage to retirees. In
2001, the city placed all existing management-level employ-
ees under the OTET health insurance program. Because the
retired management-level employees were not and could not
be members of the Teamsters, OTET would not provide cov-
erage to them.1

As noted, plaintiffs are retired city employees-two
plaintiffs are retired police officers; two plaintiffs are retired
management employees-all of whom were denied the oppor-
tunity to purchase OTET health insurance coverage at some
point after retirement. Plaintiffs were, however, eligible for cer-
tain other insurance coverage after retirement. Specifically,
under the Consolidated Omnibus Budget Reconciliation
Act of 1985 (COBRA), they were eligible to maintain their
OTET coverage for 18 months after retirement, and, after
that 18-month period expired, they were permitted to enroll
in Oregon's Public Employees Retirement System Health
Insurance Program, which is paid for in part by contributions
from employers (including the city) and in part by premiums
and other costs paid by participants (such as plaintiffs, were
they to participate).

' The Ninth Circuit order does not distinguish between the retired police offi-
cers and the retired management employees in discussing the availability of retire-
ment benefits. The court stated that, "[a]ccording to the [c]ity, the Teamsters were
'willing' to provide health insurance benefits to retired employees, but only 'if the
members of the Teamsters voted for such coverage.' " Doyle v. City of Medford, 565
F3d 536, 539 (9th Cir 2009) (emphasis added). The city, however, states that the
Teamsters were "willing" to provide benefits upon membership approval only to
retired Teamsters, such as the retired police officers, and not to retired manage-
ment employees. It is unnecessary for us to resolve that factual issue to answer the
certified question.

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In 2006, plaintiffs filed an action against the city in
federal district court, alleging that the city, in failing to make
health insurance coverage available to them, had violated
the Age Discrimination in Employment Act of 1967 (ADEA);
Oregon's age discrimination statute, ORS 659A.030; ORS
243.303, which we describe below; a 1986 city ordinance
implementing ORS 243.303; and the Due Process Clause of
the Fourteenth Amendment. The district court granted sum-
mary judgment for the city on all federal claims, denied a dis-
covery motion that plaintiffs had filed, and declined to exer-
cise supplemental jurisdiction over the remaining state law
claims. As to the due process claim (the claim now at issue),
the court held that neither ORS 243.303 nor the city's reso-
lution adopted pursuant to it granted plaintiffs a constitu-
tionally protected property interest. The court determined
that, because the statute required continued coverage only
"to the extent possible," the statute did not "sufficiently limit
the conditions under which the [c]ity would be required to
extend health insurance coverage to retirees" to create such a
property interest.

Plaintiffs appealed the federal district court's deci-
sion to the Ninth Circuit Court of Appeals.2 The Ninth Circuit
noted that resolution of plaintiffs' due process claim-that
ORS 243.303 creates a property interest in health insurance
coverage after retirement and that the city deprived them of
that interest without due process of law-requires interpre-
tation of ORS 243.303 as a matter of state law.3 Doyle, 565
F3d at 540-41 (citing Board of Regents v. Roth, 408 US 564,
577, 92 S Ct 2701, 33 L Ed 2d 548 (1972) (property interests

2 Plaintiffs also filed an action in Oregon state court asserting their state law
claims, including a claim that the city had violated ORS 243.303. In that action, the
state trial court concluded that two plaintiffs were barred from asserting their
claims by the statute of limitations but denied the city's motion for summary judg-
ment as to the other two plaintiffs. The court rejected the city's argument that
making continuing coverage available to retirees was not "possible" because of the
city's contract with OTET. Because the city had not provided evidence that no
health insurance provider was willing to provide coverage for both active and
retired city employees, the trial court refused to hold that it was impossible for the
city to make coverage available. As of the date of the Ninth Circuit's order certify-
ing the present question to us, the Oregon case was still pending in the state trial
court.

3 In a separate decision, the court reversed the denial of discovery on the ADEA
claim and remanded that claim to the district court.

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are created not by constitution, but by independent source,
such as state law)). The Ninth Circuit explained that
"[p]inpointing how much discretion" ORS 243.303 confers on
local governments is "central" to determining whether that
statute creates a property interest. Doyle, 565 F3d at 542 (cit-
ing Allen v. City of Beverly Hills, 911 F2d 367, 370 (9th Cir
1990)).

The Ninth Circuit then examined the text, context,
and legislative history of ORS 243.303 and concluded that
the statute was ambiguous as to how much discretion it
affords to local governments in determining whether to make
retiree health insurance coverage available. Doyle, 565 F3d
at 541-42. Because the court believed that resolution of that
state law question would be essential to resolution of the due
process issue, it certified to this court the question that is now
before us. As noted, that certified question asks what amount
of discretion ORS 243.303 provides to local governments in
determining whether to make health insurance coverage
available to retirees. Id. at 544. This court accepted the cer-
tified question.

ORS 243.303(2) provides:

"The governing body of any local government that con-
tracts for or otherwise makes available health care insur-
ance coverage for officers and employees of the local govern-
ment shall, insofar as and to the extent possible, make that
coverage available for any retired employee of the local gov-
ernment 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 eli-
gible 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 with this section, for making the health
care insurance coverage available. The local government
may pay none of the cost of making that coverage available

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or may agree, by collective bargaining agreement or other-
wise, to pay part or all of that cost."

(Emphasis added.) The certified question focuses on the
meaning of the phrase "shall, insofar as and to the extent pos-
sible" in that statute.

Plaintiffs argue that, because the legislature used
the word "shall," the statute imposes a mandatory duty on
local governments to make health insurance coverage avail-
able to retirees. They argue that local governments may
escape that duty only in the case of actual impossibility.
Plaintiffs argue that, "if there are providers available who
are willing to provide [health insurance] coverage that
includes retirees," the city must provide that coverage,
regardless of cost or other circumstances.4 The city takes the
contrary position, arguing that the statute imposes no duty
at all. In the city's view, because the legislature qualified the
word "shall" with the phrase "insofar as and to the extent
possible," ORS 243.303(2) is "a permissive statute leaving
total discretion to [local governments]." That is, the city con-
tends that the statute, when properly read, merely provides
authorization to make health insurance coverage available to
retirees, rather than mandating that coverage. As we discuss
below, we reject both of those interpretations of ORS
243.303(2). The proper interpretation lies between the par-
ties' positions, and whether a local government has met its
obligation under the statute will depend on the circum-
stances of each case and cannot be determined in the
abstract.

We begin with the text of the statute. Ordinarily, use
of the word "shall" implies that the legislature intended to
create an obligation; in contrast, "may" generally implies
that the legislature intended to create only the authority to

4 Plaintiffs also urge us to reformulate the certified question and advise the
Ninth Circuit that ORS 243.303(2) creates an "entitlement" and "vested rights" for
retirees. That request, however, would have us answer the federal question pre-
sented in this case and affirmatively state that ORS 243.303(2) creates a property
interest for purposes of the Due Process Clause. We decline to do so and instead
answer only the state law question before us-whether and to what extent ORS
243.303(2) imposes an obligation on local governments to make health insurance
coverage available to retirees. What that answer means in terms of the federal
question will then be a matter for the Ninth Circuit to decide.

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act. Friends of Columbia Gorge v. Columbia River (S055915),
346 Or 415, 426-27, 212 P3d 1243 (2009); see also Webster's
Third New Int'l Dictionary 2085 (unabridged ed 2002) (defin-
ing "shall," in part, as "used in laws, regulations, or directives
to express what is mandatory"); Legislative Administration
Committee, Form and Style Manual for Legislative Measures
6 (2008) ("To impose an obligation to act, use 'shall.'"). There
can be, of course, situations in which the context demon-
strates that, although the legislature used the word "shall," it
intended to create a permissive statute. See Stanley, Adm. v.
Mueller, 211 Or 198, 208, 315 P2d 125 (1957) ("[T]here are
numerous instances in which 'shall' in a statute is inter-
preted as 'may' * * *. "). Here, however, as we describe below,
the context demonstrates that the legislature intended
"shall" to retain its ordinary meaning. We therefore agree
with plaintiffs that ORS 243.303(2) creates some obligation
for local governments and is not merely an authorization to
make coverage available for retirees; contrary to the city's
view, the statute does not give the city the discretion simply
to decline to make coverage available. The more difficult
question is, when and under what circumstances may a local
government decide not to make the same coverage available
to retirees that it makes available to current employees (or
not to make any coverage available to retirees).

ORS 243.303 was originally enacted in 1981 and pro-
vided that local governments "may, insofar as and to the
extent possible," make health insurance coverage available
to certain retired employees. Or Laws 1981, ch 240, § 1. The
parties agree that critical changes were made to the statute
in 1985, when the legislature amended several provisions of
ORS 243.303(2). The 1985 amendment provided as follows:

"The governing body of any local government that con-
tracts for or otherwise makes available health care insur-
ance coverage for officers and employes of the local govern-
ment [may] shall, insofar as and to the extent possible,
make that coverage available for [retired officers and
employes of the local government and for spouses and
unmarried children under 18 years of age of those retired
officers and employes.] any retired employe of the local
government who elects within 60 days after the effec-
tive date of retirement to participate in that cover-
age and, at the option of the retired employe, for the

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spouse of the retired employe and any unmarried
children under 18 years of age. The health care insur-
ance coverage shall be made available for a retired
employe until the retired employe becomes eligible
for federal Medicare coverage, for the spouse of a
retired employe 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 pre-
scribe reasonable terms and conditions of eligibility and
coverage, not inconsistent with this section, for making
[that] the health care insurance coverage available. The
local government may [agree to] pay nonel, part or all] of
the cost of making that coverage available or may agree,
by collective bargaining agreement or otherwise, to
pay part or all of that cost."

Or Laws 1985, ch 224, § 1 (new text in boldface; deleted text
in [bracketed italics]).

With that amendment, the legislature made two sig-
nificant changes to the statute. First, and most obviously, the
legislature replaced the word "may," which ordinarily con-
notes authority or discretion, with the word "shall," which
ordinarily connotes obligation. The city argues that, notwith-
standing the substitution of "shall" for "may," the legislature
intended to completely eliminate the mandatory nature of
the word "shall" by retaining the phrase "insofar as and to the
extent possible." However, we cannot ignore the fact that the
legislature changed the wording from the permissive "may"
to the mandatory "shall"; the legislature intended to accom-
plish something with that amendment, namely, changing the
mere grant of authority to an obligation of some kind on local
governments.

Second, the legislature added a provision providing a
time period within which health insurance coverage must be
made available. That is, the 1985 amendment provided that
health insurance coverage "shall be made available" for retir-
ees until they become eligible for Medicare; after that point
health insurance coverage "may, but need not," be made
available. The legislature thus contrasted the mandatory
word "shall" (before Medicare eligibility) with the permissive

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word "may" (after Medicare eligibility). That provision dem-
onstrates that the legislature appreciated the difference
between the two terms and that it intended to create some
kind of obligation for local governments-that they make
health insurance coverage available to retired employees-
but that the obligation lasts only until the retired employees
become eligible for Medicare. See Friends of Columbia Gorge,
346 Or at 426 (when "shall" and "may" appear side by side,
"shall" creates duty and "may" creates only authority).

The foregoing statutory text and context demon-
strate that, by using the word "shall," the legislature
intended ORS 243.303(2) to impose an obligation on local
governments. The city's argument that it has complete dis-
cretion to choose whether to make health insurance coverage
available to retirees is simply inconsistent with the text of
that statute. However, the legislature also modified that
mandatory wording with the phrase "insofar as and to the
extent possible." We now turn to a discussion of that phrase
to determine how it influences our interpretation of the
statute.

We begin, again, with the text of the statute. Plain-
tiffs contend that the plain, natural, and ordinary meaning of
"possible" is "capable of happening," so that the phrase "inso-
far as and to the extent possible" creates a narrow exception
for only actual impossibility. See Webster's at 1771 ("possible"
means "falling within the bounds of what may be done, occur,
be conceived, or be attained within the framework of nature,
custom, or manners"). They therefore argue that it is "possi-
ble" for a local government to make health insurance cover-
age available to retirees as long as there is an insurance pro-
vider that is willing to provide such coverage, regardless of
increased cost to the local government or reduction in the
local government's services.

The statutory wording is not as limited as plaintiffs
suggest. The phrase "insofar as and to the extent possible" is
also used in common parlance to excuse performance of an
obligation if, under the circumstances, performance would be
unreasonably burdensome, even if it is not factually impos-
sible. See id. (defining "possible" as "being within or up to the
limits of one's ability or capacity as determined by nature,

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authority, circumstances, or other controlling factor" (empha-
sis added)); Eck v. Market Basket, 264 Or 400, 405, 505 P2d
1156 (1973) (stating that, "insofar as possible," trial court
should avoid interlineations and deletions in written jury
instructions but acknowledging that it may not be possible
due to the unavailability of "time and stenographic
assistance").

Plaintiffs' argument that the word "possible" should
be interpreted to mean "capable of happening" also ignores
other words in the statute. The legislature did not use the
word "possible" by itself; ORS 243.303(2) does not require
that health insurance coverage be made available to retirees
"unless it is not possible" to do so, nor did the legislature pro-
vide that coverage must be made available "if possible."
Rather, the legislature modified the condition that providing
coverage must be "possible" with the additional words "inso-
far as and to the extent." "Insofar as" means "in such measure
as : to such extent or degree as." Webster's at 1170. And
"extent," as used in this context, is defined as "the point or
degree to which something extends." Id. at 805. Both of those
phrases emphasize the concept of degree or amount, indicat-
ing that the legislature did not view the health insurance cov-
erage obligation as one that necessarily was either "possible"
or "not possible"-as plaintiffs suggest-but rather as one
that might be possible only to some degree or to some extent.
The statute recognizes that local governments face vary-
ing circumstances, and it gives local governments some
flexibility in complying with the statute, based on those
circumstances.

That interpretation of ORS 243.303(2) is consistent
with the way the legislature has modified the word "shall"
with the phrase "to the extent possible" or the phrase "insofar
as possible" in other statutes. Ordinarily, the legislature
appears to have used those phrases to articulate a specific
legislative policy, rather than imposing an actual impossibil-
ity exception. For example, in chapter 185, the legislature
has created several commissions to advise the Governor and
the legislature. For each commission, the legislature pro-
vides, "To the extent possible, members appointed by the
Governor shall provide for representation from all areas of
the state." ORS 185.320(1) (Commission on Hispanic Affairs);

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ORS 185.420(1) (Commission on Black Affairs); ORS
185.520(1) (Commission for Women); ORS 185.610(1) (Com-
mission on Asian Affairs); see also ORS 672.615(2) ("Insofar
as possible the [State Board of Geologist Examiners] shall be
composed of members having diverse geological specialties
including at least one engineering geologist."). Our review of
those and other statutes5 in which the legislature has used
the phrases "insofar as possible" and "to the extent possible"
supports our conclusion that the legislature intended to
impose an obligation, but also to provide some flexibility to
local governments, when it used the phrase "insofar as and to
the extent possible" in ORS 243.303(2).

Other aspects of the statutory context support that
view. When the legislature in 1985 changed ORS 243.303(2)
from an authorization to make health insurance coverage
available to an obligation to do so "insofar as and to the
extent possible," it nevertheless retained (with one slight
modification) the sentence in that statute providing that
"[t]he governing body may prescribe reasonable terms and
conditions of eligibility and coverage not inconsistent with
this section, for making the health care insurance coverage
available." The statute thus recognizes that it may not be
possible for a local government to make the same coverage
available to retirees that it makes available to current
employees, but that, in that event, "insofar as and to the
extent" that it is possible to make some coverage available to
retirees, in light of all the circumstances, it is obligated to do
so. Moreover, the statute explicitly provides that the local
government "may pay none of the cost of making that cover-
age available [to retirees] or may agree, by collective bargain-
ing agreement or otherwise, to pay part or all of that cost."
Those provisions demonstrate that the legislature intended
that, if it is not possible for a local government to make avail-
able to retirees the same health insurance coverage that it

5 See, e.g., ORS 144.515 ("To the extent possible, the Department of
Corrections shall cooperate with employers in making possible the continued
employment of persons released [from confinement after participating in a work
release program]."); ORS 802.270(3) ("A computer system designed for the pur-
poses [of maintaining computerized records of insurance information with the
Department of Transportation] shall, to the extent possible, enable insurers to
transfer information directly to the computer in a way that is most convenient for
the insurers and the department.").

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makes available to current employees, the government has
flexibility in implementing the obligation that the legislature
has imposed.6

The foregoing text and context analysis supports the
conclusion that, under ORS 243.303(2), local governments
have an obligation to make health insurance coverage avail-
able to retirees, but that there may be factual circumstances
that excuse that obligation.

To the extent that any uncertainty remains in inter-
preting ORS 243.303(2), the legislative history further sup-
ports the interpretation set out above. See State v. Gaines,
346 Or 160, 172, 206 P3d 1042 (2009) (court may consider leg-
islative history proffered by the parties, if useful). In 1985,
the legislature amended ORS 243.303(2) with House Bill
(HB) 2430 (1985). As noted, among other amendments, the
legislature changed the relevant phrase from "may, insofar
as and to the extent possible," to "shall, insofar as and to the
extent possible." Or Laws 1985, ch 224, § 1. We therefore look
to the legislative history of that bill for further guidance.

There is little specific discussion in the legislative
history of the phrase "insofar as and to the extent possible."7

6 The legislature also has imposed limits-although they have differed at dif-
ferent times-on the ways in which a local government could meet its obligation. In
2001, the legislature amended ORS 243.303 by adding a provision that prohibited
local governments and insurers from creating separate retiree "groups" and from
establishing higher premiums for retirees than for current employees. Or Laws
2001, ch 604, § 1, codified at former ORS 243.303(3) (2001). In 2003, however, the
legislature amended ORS 243.303(3), modifying the prohibition on creating sepa-
rate groups and eliminating the prohibition on higher premiums for retirees. Or
Laws 2003, ch 62, § 1; Or Laws 2003, ch 694, § 1. ORS 243.303(3), however, does not
assist us in interpreting ORS 243.303(2), which took its present form more than
15 years earlier. See State v. Tate, 347 Or 318, 328, 220 P3d 1176 (2009) (later-
enacted statute ordinarily provides little interpretive assistance).

7 At one point during the public hearings before the House Intergovernmental
Affairs Committee, Representative Cease questioned a witness, Don Satchell of the
Oregon Education Association, regarding the term:

Rep. Cease: "What's your understanding of the phrase 'insofar as and to
the extent possible'? What does that mean?"

Satchell: "That is the current law, and I cannot explain it."

Rep. Cease: "Whatever it means in the current law, it would mean the
same here, then?"

Satchell: "That's right."

Tape Recording, House Intergovernmental Affairs Committee, HB 2430, Mar 26,
1985, Tape 97 (statement of Don Satchell).

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However, two propositions can be gleaned from the legisla-
tive history overall. First, it appears that the legislators
understood that the bill would impose some sort of obligation
on local governments. As discussed above, that much is clear
from the text and context of the statute. Second, the legisla-
tors emphasized, particularly when questioning witnesses
who were opposed to the bill, that the bill provided local gov-
ernments flexibility in carrying out their obligations.

Two specific discussions in the legislative history
illustrate the foregoing conclusions. First, during a work ses-
sion on the bill, Legislative Counsel Bob Lundy referred to
the phrase "insofar as and to the extent possible." In attempt-
ing to determine whether the bill would require local govern-
ments to make identical coverage available to retirees and
current employees, Chairperson Hill requested Lundy's help.
He first sought Lundy's interpretation of the provision in the
bill that permitted local governments to "prescribe reason-
able terms and conditions of eligibility and coverage" for
retiree health insurance coverage. The following exchange
ensued:

Lundy: "[T]he original reason for the terminology that
the * * * governing body may provide reasonable terms and
conditions of eligibility and coverage was * * * to provide
some flexibility to the local governments in trying to fit the
retired people into the coverage that is made available for
the working employees of the local government. * * * It is
deliberately general."

Chairperson Hill: "Your [premise] then, in summary,
would be to provide flexibility?"

Lundy: "Yes."

**** * **

Chairperson Hill: "Mr. Lundy, could you also speak to
'that coverage'? We have * * * terms here that say the local
government 'shall insofar and to the extent possible'-
which sounds again like qualifying language, and that's
excepting language-'make that coverage available.' Would
you *** agree ** * that the coverage must be identical or
that the coverage must be comparable?"

Lundy: "It contemplates with [the] flexible terminol-
ogy-not only down below but that insofar and to the extent

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possible-it contemplates that the insurance plan provided
for the working employees would be the plan that covers the
retired employee, subject to whatever conditions they have
to work out with the insurer on it, for example * * *. "

Tape Recording, House Intergovernmental Affairs Committee,
HB 2430, Mar 26, 1985, Tape 97 (statement of Bob Lundy)
(emphasis added).

That exchange helps demonstrate that the legisla-
ture intended to provide flexibility to local governments
throughout the bill and, in particular, by retaining the
phrase "insofar as and to the extent possible." Lundy specifi-
cally pointed to the fact that insurance companies might
impose conditions on retiree coverage and noted that the bill
was intended to require local governments to work with
insurance companies to try to make health insurance cover-
age available, although perhaps not coverage identical to
that of the active employees.

Second, Senator Cohen's comments while presenting
the bill on the Senate floor reinforce the interpretation sug-
gested above. After describing the bill in terms of creating a
requirement for local governments, Senator Cohen qualified
her statements:

"I want to remind you, on line 14, it does say 'insofar as
and to the extent possible make the coverage available'
\* \* \* so that it does provide that * * * they may offer differ-
ent packages for * * * them to * * * pay for * * * as they go
along so * * * it doesn't say that it shall be in fact the very
very same, it says * * * you have to be provided that option
within the group system. And also that the governing body
may prescribe reasonable terms and conditions of eligibility
and coverage. The local government may pay none or part of
the costs of making the coverage available."

Senator Cohen emphasized with those comments to the
Senate that the bill was intended to be flexible. Tape Recording,
Senate Floor Proceedings, HB 2430, May 22, 1985, Tape
124B (statement of Sen Cohen).

Although most of the comments discussed above
were made in the context of whether ORS 243.303 required
local governments to make available the same terms of
health insurance coverage for retired employees and active
employees, both Lundy and Senator Cohen discussed the

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meaning of the phrase "insofar as and to the extent possible"
generally. That phrase modifies the local government's obli-
gation to make health insurance coverage available to retired
employees, as well as the particular terms of coverage. We
therefore find the legislative history useful in confirming that
the phrase "insofar as and to the extent possible" was
intended to create flexibility within the statute as a whole.
The statutory text and context demonstrate that the leg-
islature intended the bill to impose an obligation on local gov-
ernments, but the text, context, and legislative history also
make it clear that the bill was not intended to be unduly
burdensome.

Based on the foregoing, we interpret ORS 243.303(2)
to create an obligation on local governments to make the
health insurance coverage that they provide to active
employees available to retired employees. It does not, as the
city argues, leave the city with "total discretion" to decline to
make coverage available to retirees or to choose health insur-
ance coverage for its current employees without regard to
whether the insurer is willing to offer coverage to retirees.
Neither, however, do we interpret the statute as imposing an
absolute mandate, subject only to an exception for actual
impossibility. Local governments exist to provide govern-
ment services, and they have statutory and contractual obli-
gations to employees, retirees, and the citizens within their
jurisdictions. Whether a local government has complied with
ORS 243.303(2) will depend on whether it has made health
insurance coverage available to retirees "insofar as and to the
extent possible," in light of all the facts. The responsibility to
demonstrate that it was not possible, under the statutory
standard, to make coverage available to retirees rests with
the local government, and we emphasize that the local gov-
ernment cannot make that showing, as the city attempts to
here, by pointing solely to the fact that its chosen provider
does not offer retiree health insurance coverage. Although
the statutory standard is a legal one, determining whether a
local government has demonstrated that it should be excused
from making health insurance coverage available to retirees
will depend on the facts of each case.

The certified question asks what "amount of discre-
tion" ORS 243.303(2) confers on local governments. As the
discussion above demonstrates, we reject the city's position

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<!-- PageHeader="Doyle v. City of Medford" -->

that the statute delegates to the city discretion to make
health insurance coverage available to retired employees; we
likewise reject plaintiffs' position that the obligation is abso-
lute, and can be excused only if making coverage available is
not "capable of happening." The answer, instead, lies some-
where in between. We also find unhelpful the parties' efforts
to reformulate the legal standard established by the statute.
The statute requires a local government to make the cover-
age available "insofar as and to the extent possible." That is
the standard that the local government must meet to be
excused from the obligation imposed by ORS 243.303(2).
Whether a local government has met that standard cannot be
answered in the abstract and will depend on the facts.

The certified question is answered.