Defendant Jackson County petitions for reconsideration of our opinion, Allen v. County of Jackson, 162 Or App 309, 986 P2d 612 (1999), in which we dismissed defendant’s appeal and plaintiffs’ cross-appeal for lack of a final judgment. We allow the petition to reconsider, vacate our original opinion and reverse on appeal and cross-appeal.
In November 1994, the voters of the State of Oregon enacted Measure 8, which amended the Oregon Constitution to require that public employees contribute six percent of their compensation to their retirement accounts. Measure 8 also prohibited public employers from paying their employees’ contributions. In December 1994, defendant adopted an ordinance that provided that it would no longer pay plaintiffs’ contributions and gave plaintiffs a 5.7 percent pay increase. In 1996, the Supreme Court declared Measure 8 unconstitutional as an' impairment of contract in violation of Article I, section 10, of the United States Constitution (the Contracts Clause). Oregon State Police Officers’ Assn. v. State of Oregon, 323 Or 356, 918 P2d 765 (1996). Plaintiffs are Jackson County employees who seek to recover the amounts that defendant deducted from their wages for retirement contributions between December 7,1994, and October 8,1996.
In January 1997, plaintiffs filed the complaint in this case against defendant, stating three claims: (1) a claim under 42 USC § 1983 based on an impairment of contract theory under the Contracts Clause; (2) a claim for breach of contract; and (3) a statutory wage claim under ORS chapter 652. Plaintiffs moved for summary judgment on all of their claims. The common thread in the section 1983 and breach of contract claims is plaintiffs’ argument that their performance of their employment duties constituted an acceptance of defendant’s promise to pay their retirement benefit contributions so long as they worked for defendant.
Defendant thereafter moved (1) to dismiss the section 1983 claim pursuant to ORCP 21 A(8); (2) for summary judgment against five of the plaintiffs whose employment differed from the remaining plaintiffs on the breach of contract claim; (3) for partial summary judgment on its affirmative *120defense of mitigation that would limit the remaining plaintiffs’ damages to the difference between the six percent pension pick-up that did not occur and the 5.7 percent pay increase that they received; and (4) for summary judgment on plaintiffs’ wage claim.
The trial court granted defendant’s motion for summary judgment concerning the wage claim and denied defendant’s remaining motions. The court also granted plaintiffs’ motion for summary judgment on their section 1983 and breach of contract claims as to all plaintiffs. Defendant appeals from the grant of summary judgment on plaintiffs’ motions, and plaintiffs cross-appeal from the grant of defendant’s summary judgment motion on plaintiffs’ wage claim.
In our original opinion, we reasoned:
“[T]he ‘judgment’ purports to award each plaintiff ‘a judgment against defendant * * * for all amounts withheld from their regular salary for the purpose of making pension contributions from December 1994 to October 1996 plus statutory interest from the date of each withholding.’ It purports to be a judgment for the payment of money. However, it does not comply with ORCP 70 because it does not adjudicate the amounts of the money judgments that plaintiffs seek.” Allen, 162 Or App at 315 (ellipsis in original).
After we issued our opinion, defendant asked us to grant leave to the trial court to enter an amended judgment. We granted defendant’s request and ordered the parties to submit memoranda on the effect of Rauda v. Oregon Roses, Inc., 329 Or 265, 986 P2d 1157 (1999), on our jurisdiction over any amended judgment. After we issued our order, the trial court entered an amended judgment that recites that the court had previously granted plaintiffs’ summary judgment motion as to liability and that, while “defendant does not accede to the correctness of the summary judgment or that any amount is owing to the plaintiffs, the parties have agreed on the calculations of the amounts owing to each plaintiff pursuant to the ruling of the court if a trial as to damages were conducted.” The amended judgment also (1) awards each plaintiff a specific amount of damages under plaintiffs’ breach of contract and section 1983 claims;1 (2) dismisses plaintiffs’ statutory *121wage claim; (3) dismisses all claims against the State of Oregon without prejudice;2 and (4) awards plaintiffs costs and attorney fees under 42 USC § 1988.
I. THE APPEALABILITY OF THE AMENDED JUDGMENT
In Rauda, after the trial court denied the defendant’s motion to dismiss, the parties stipulated to the entry of a judgment in favor of the plaintiffs and purported to reserve the defendant’s right to appeal from it. We affirmed. Rauda v. Oregon Roses, Inc., 147 Or App 106, 935 P2d 469 (1997). On review, the Supreme Court vacated our decision and dismissed the appeal for lack of jurisdiction. It noted that the parties stipulated to the judgment as a whole and “did not confine their stipulation, for example, to the fact or amount of plaintiffs’ damages,” Rauda, 329 Or at 269. It then concluded that a stipulated judgment is not appealable under ORS 19.245 (1997). At the core of the reasoning in Rauda is the proposition that parties cannot by agreement create a right to appeal from a stipulated judgment that is not otherwise appealable.
Here, unlike in Rauda, the parties did not stipulate to a judgment that is not otherwise appealable. Rather, the amended judgment recites that defendant contested the rulings in favor of plaintiffs on the liability issues and denied that any amount of damages was owed. All that defendants concede is that, assuming the correctness of the court’s rulings that defendant contested, plaintiffs’ evidence would result in a judgment in the amounts that the judgment actually awarded. Under these circumstances, we conclude that the amended judgment is not controlled by the holding in Rauda and is appealable. Rather than constituting a stipulated judgment from which the parties reserved the right to appeal, the judgment reflects that the parties litigated *122contested issues, on which the court made rulings regarding liability and damages, and that any stipulation was limited to certain facts, not to the judgment as a whole.
II. DEFENDANT’S APPEAL
In its brief, defendant provides a summary of undisputed facts that were before the trial court in its consideration of the summary judgment motions. That summary states:
“In the general election of 1994, the voters of the state enacted Measure 8 which amended the state constitution to require that public employees contribute 6% of their compensation to their retirement accounts and to prohibit employers from picking up their employees’ retirement contributions.
“On December 7, 1994, after Measure 8 had been approved by the voters but was not yet effective, [defendant] gave all of its employees a raise and began deducting their 6% pension contributions from their pay. The raise for represented employees, pursuant to an amendment of the collective bargaining agreements, was 6%. The raise for supervisory employees (including plaintiffs) was 5.7%.
“By opinion of June 21, 1996, the Supreme Court[,] in Oregon State Police ***[,] declared Measure 8 unconstitutionally void. On October 8, 1996, pursuant to that decision, [defendant] reinstated its employer payment (referred to as ‘pick-up’) of its supervisors’ pension contributions.
“Plaintiffs are the Sheriff of Jackson County and the supervisory employees of the Jackson County Sheriffs Office. They are all members of the group which received a 5.7% pay increase. Plaintiffs are suing for the return of their 6% deductions made between December 7,1994[,] and October 8,1996, as damages for breach and impairment of their retirement contracts.
“Three plaintiffs (Steven[ ] Daniels, Brad Hope and Dewey P. Patten) were promoted from the bargaining unit to supervisory positions after Measure 8 was effective. * * *
“Plaintiffs Miltona L. Hendrix and Michel HollaranMarshall were new hires into their supervisory positions on January 8,1996, and February 20,1996, respectively.”
*123When a summary judgment is on appeal,
“[w]e review to ascertain whether the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. In so doing, we view the record in the light most favorable to the party opposing summary judgment.” Quillen v. Roseburg Forest Products, Inc., 159 Or App 6, 9, 976 P2d 91 (1999).
See also ORCP 47 C.3
A. The Breach of Contract Claim
On appeal, defendant makes three arguments under its assignment that the trial court erred in granting summary judgment on plaintiffs’ breach of contract claim. First, defendant asserts that, because plaintiffs Hendrix and Holloran-Marshall were hired after Measure 8 became effective, “the contract accepted by [them] did not include a condition that [defendant] would pick up their contributions” and “these two plaintiffs agreed to make their own pension contributions.” Plaintiffs counter that there is no evidence in the record that any of the plaintiffs had employment agreements that were different from those of any other employees.
On December 7, 1994, defendant enacted an ordinance that eliminated its obligation to pick up its employees’ retirement contributions. Hendrix was hired on January 8, 1996, and Holloran-Marshall was hired on February 20, 1996. The nature of the contractual obligation alleged by *124plaintiffs in their breach of contract claim is that the obligation to pick up an employee’s retirement contribution arises from the employment agreement in effect at the inception of employment. If Hendrix and Holloran-Marshall were employed after defendant elected not to pick up their employees’ retirement contributions, then arguably defendant had no contractual obligation to pay the contributions because Hendrix and Holloran-Marshall’s services were not rendered in exchange for the promise to pick up the contributions. Accordingly, summary judgment is precluded on this record because there is an issue of fact about whether Hendrix and Holloran-Marshall’s employment contracts with defendant obligated defendant to pick up their retirement account contributions.
Second, defendant argues that there is an issue of fact that precludes summary judgment regarding plaintiffs Daniels, Hope and Patten for a similar reason. Measure 8 became effective on December 8, 1994. Defendant asserts that
“[t]he employment contract of [Daniels, Hope and Patten], as members of a bargaining unit, was modified by collective bargaining prior to the effective date of Measure 8 to require them to make their own pension contributions in return for a [ ] 6% pay increase. When they were promoted to supervisory positions, they continued to make their own contributions as they had agreed to do. [Defendant’s] compliance with Measure 8 was neither a breach nor an impairment of any condition of the employment contract to which they had agreed.”
There is evidence that Daniels, Hope and Patten were promoted after defendant had ceased to pick up the pension contributions for supervisory employees and after the collective bargaining unit, of which Daniels, Hope and Patten were members, agreed with defendant that its members would receive a pay increase and make their own contributions. In light of plaintiffs’ theory underlying their breach of contract claim, that evidence raises a question of fact about the employment terms under which Daniels, Hope and Patten were performing their work during the pertinent time periods. Those issues of fact preclude summary judgment for Hendrix, Holloran-Marshall, Daniels, Hope and Patten.
*125Third, defendant argues that, with regard to the remaining plaintiffs, there is a genuine issue of material fact concerning whether defendant “gave a 5.7% compensation increase to the remaining plaintiffs for the purpose of offsetting their 6% loss from Measure 8” such that “[t]heir damages arising from deductions pursuant to Measure 8, if any, cannot exceed 0.3% of their compensation during the effective period of Measure 8.” These plaintiffs counter that the trial court appropriately granted summary judgment in their favor and awarded the correct amount of damages because “the pay raise was not an offset and [defendant] * * * improperly shifted] part of the economic burden of providing a pension onto the plaintiffs in clear violation of the standard in Oregon [Síaíe] Police[.T Plaintiffs explain:
“In reviewing Ballot Measure 8’s requirement that each employee contribute 6% of compensation to their [sic] pension plan, the court in Oregon State Police * * * rejected the argument that this requirement was merely a question of salary which was within the control of each individual employer. The analysis adopted by the court was to determine whether the impact of this provision of Measure 8 was to shift part of the economic burden of providing a promised pension from the employer to the employee. The court held that such a shift of economic burden would frustrate the purpose and intent of the pension contract and constitute an impairment of contract.
“The task in this case, just as it was in Oregon State Police[,] * * * is to determine whether [defendant’s] actions, judged in their totality, are, in fact, an attempt to shift part of the economic burden of providing a pension onto the shoulders of its employees. The 5.7% increase must be considered a market increase not because the plaintiffs have labeled it as such, but because [defendant] has consistently treated it as such. By treating this 5.7% increase as a market increase, [defendant] has lowered every management employee’s salary range in comparison with the relevant market. This is precisely the kind of economic burden shifting that the court found improper in Oregon State Police[.]”
We do not understand defendant to argue on appeal that its failure to pick up its employees’ retirement contributions during the pertinent time period was not a breach of those agreements. Rather, defendant appears to concede *126that, for purposes of the breach of contract claim, the only issue as to the remaining plaintiffs is whether they are entitled to damages measured by the six percent pension pick-up that did not occur or by the 0.3 percent difference between the six percent pick-up that did not occur and the 5.7 percent pay increase. According to defendant, the evidence in the summary judgment record is “unanimous” that, when defendant enacted its ordinance, it intended the pay increase to act as an offset to the loss of the pension pick-up. On the other hand, plaintiffs assert that the evidence is uncontroverted that the 5.7 percent pay increase was intended as a raise to make defendant competitive with other employers. Consequently, they claim that they are entitled to the 5.7 percent raise granted to them by defendant in addition to the recoupment of the six percent retirement account contributions that defendant did not make.4
Viewed in the light most favorable to defendant, the evidence would permit a jury to find that defendant intended the 5.7 percent pay increase to be only an offset for the loss suffered by its employees because of Measure 8. Burke Raymond, the county administrator, testified:
“Q. * * * This was simply, I guess I would call it an offset for this new requirement of payment into the pension plan?
“A. Yes.
“Q. Is there any document that you can point me to which states that just that clearly?
“A. No.
“Q. Why is that?
“A. After Measure 8 was passed, in considering what to do, it was decided that since the union employees had *127had the switch possible through their contractual arrangements with the county, that we had to do whatever we could try to do to take care of the program for managers.
“And since the payment on the county side for requirement was going to be decreased, that created a pool of money, and it was decided that we should give the employees as much of that money as possible to make themselves whole.”
The language of the December 7,1994, ordinance enacted by the Jackson County Board of County Commissioners also tends to support Raymond’s testimony.
On the other hand, there is also evidence in the record that supports plaintiffs’ position that the purpose of the 5.7 percent pay increase was to make defendant’s salaries competitive with the salaries of other employers. Thus, there is a genuine issue of material fact on the amount of the remaining employees’ damages in the breach of contract action. Consequently, the trial court erred in granting summary judgment to those plaintiffs on that claim. There are also genuine issues of material fact concerning whether defendant was obligated by contract to pick up the retirement contributions of plaintiffs Hendrix, Holloran-Marshall, Daniels, Hope and Patten.
B. The Section 1983 Claim
Defendant moved to dismiss plaintiffs’ section 1983 claim in the trial court under ORCP 21 on the ground that plaintiffs had failed to state a claim for relief because plaintiffs’ allegations refer to Measure 8 and defendant “is not alleged to have enacted any legislation [that] impaired any contract.” Additionally, in its brief defendant makes a second motion, apparently for the first time on appeal, to dismiss the section 1983 claim for failure to state facts sufficient to constitute a claim. ORCP 21(A)(8). Defendant asserts that a violation of the Contracts Clause cannot be remedied through a section 1983 claim and that “[d]amages are not an available remedy for a claim of impairment of contract.”5
*128We do not find it necessary to consider defendant’s second motion to dismiss, because we agree that defendant did not impair the obligation of its contract with plaintiffs; rather, it breached that contract, which is not a constitutional violation.6 Because defendant did no more than to breach its contracts with plaintiffs; it did not violate any federally protected rights. There is thus no basis for a section 1983 claim.7 The Oregon Supreme Court has made it clear that the state and federal constitutional provisions that prohibit impairing the obligation of a contract do not turn every breach of contract by a public body into a constitutional violation. In Eckles v. State of Oregon, 306 Or 380, 760 P2d 846 (1988), the court explained the difference between an action that impairs a legislatively created contract and one that merely breaches it: an act that purports to abrogate the state’s contractual obligation is an unconstitutional impairment, while an act that only requires actions that violate the contract is a breach, not an impairment. Eckles, 306 Or at 399-400. In Eckles, one section of the challenged act changed the law governing the State Industrial Accident Fund to permit the state to use surplus funds for general state purposes, rather than limiting their use to workers’ compensation matters. A separate section ordered the actual transfer of money from the Fund to the state’s general fund. The Supreme Court held that the first section impaired an obligation of the contract between the state and the beneficiaries of the Fund because it abolished the state’s previous obligation to use the fund for limited purposes. On the other hand, the second section did not impair the obligation of that contract but, rather, required the state to breach it. Id. at 399-401.
In Hughes v. State of Oregon, 314 Or 1, 838 P2d 1018 (1992), the issue was whether an act that changed the laws *129relating to the taxation of public employee retirement benefits impaired the obligation of the state’s contract with public employees. In answering that question, the Supreme Court relied on the distinction in Eckles between impairment and breach of a contract. It held that the section of the act that retroactively repealed a guaranty that benefits would not be subject to state taxation was a nullity because it impaired an obligation of the contract for benefits based on work performed before the effective date of the act. However, the section that repealed the actual tax exemption did not impair any contractual obligation because by itself it did not deny the existence of the obligation. Rather, that section breached the contract. Hughes, 314 Or at 31-32.
Both Eckles and Hughes were based on Article I, section 21, of the Oregon Constitution. Measure 8, which is at issue in this case, was an amendment to the Oregon Constitution, and thus any attack on it had to be based on the Contracts Clause, rather than on the state constitution. However, in Eckles and Hughes the Oregon Supreme Court relied on decisions of the United States Supreme Court under the Contracts Clause for the distinction between impairing and breaching a contract. It thus concluded that that distinction is part of both constitutions.
In Oregon State Police, the court held that section 10 of Measure 8, which prohibited public employers from picking up their employees’ contributions to PERS, impaired the obligation of the employees’ PERS contracts and therefore violated the Contracts Clause. That provision repudiated the obligation that those contracts contained. In this case, after the adoption of Measure 8 defendant granted plaintiffs a pay raise and began deducting six percent pension contributions from their pay. Unlike Measure 8, defendant’s actions did not deny the obligation of its contracts with plaintiffs. Rather, defendant failed to honor those obligations, thereby breaching those contracts.
In short, Measure 8 impaired the obligation of the contracts, while defendant breached the terms of those contracts.8 The relationship between Measure 8 and defendant’s *130actions is similar to that between the sections that impaired the contractual obligations in Eckles and Hughes and the sections that implemented the impairing statutes. Thus, in Eckles one section changed the state’s obligation to the beneficiaries of the Fund, while another section ordered the transfer of money from the fund to the state; in Hughes one section repealed the promise that pension benefits would be tax-free, while another section repealed the tax exemption. Only the actions that unilaterally changed the state’s obligation actually impaired the contracts.
Because Measure 8 changed defendant’s obligations under its contracts with plaintiffs, it impaired the obligation of those contracts. Measure 8, however, was an act of the state with which the county had nothing to do. Defendant’s subsequent actions that implemented Measure 8 were breaches of its contracts with plaintiffs, but they did not impair those contracts. Thus, if there is a section 1983 claim arising from Measure 8 for impairment of plaintiffs’ contracts, then the state, not defendant, is the proper defendant. It was the state, not defendant, that violated plaintiffs’ protected federal rights. Because defendant did not impair the contracts, plaintiffs do not have a claim against it under section 1983.
III. PLAINTIFFS’ CROSS-APPEAL
On cross-appeal, plaintiffs argue that the trial court erred in dismissing their ORS chapter 652 wage claim. They assert that defendant violated ORS 652.610(3) by deducting six percent from the wages of each plaintiff when he or she had not authorized the deductions and the law did not require them. According to plaintiffs, “[t]he trial court erred in holding that [defendant] had not violated ORS 652.610(3) and this court should hold that [defendant’s] 6% deduction constituted an improper wage deduction in violation of Oregon statute” and “reverse the trial court’s finding on the *131question of whether there was a violation of ORS 652.610(3) and allow the trial court to award damages including attorney fees as appropriate.” They allege that “[defendant county has declined to pay to plaintiffs the amounts improperly withheld from their pay for the period from December 1994 through October 1996[,]” and that “[defendant county has failed to properly pay the full amount of wages due each plaintiff on all paydays between December 1994 and October 1996.” They also allege that they are entitled to attorney fees under ORS 652.200.
Plaintiffs moved for summary judgment on this claim. In their memorandum in support of their motion, plaintiffs represented to the trial court that defendant had “violated ORS 652.610(3) by making an improper deduction from its employees’ wages and violated ORS 652.120 by failing to pay each employee the full amount due and owing to them on each payday.” Defendant also moved for summary judgment on this claim. In its motion, defendant asserted that “[plaintiffs’ grievance is not that [defendant] failed to pay all the salary due them, but that [defendant] failed to pay their pension funds on their behalves” and that, under the reasoning in Oregon State Police, “[t]his case also is not about payment of salaries; it is about payment of pensions. The [breach of contract claim] seeks damages for [defendant’s] failure to [make] pension payments in addition to salary, not for a failure to pay all the salary [that] was due. The [wage claim] is simply misconceived and should be dismissed.” In its order concerning the summary judgment motions, the trial court granted defendant’s motion for partial summary judgment concerning the wage claim without stating its reasoning.
On cross-appeal, the question presented, according to plaintiffs’ brief, is: “Did the court err in rejecting plaintiffs’ claim that [defendant] improperly deducted monies from their paychecks contrary to ORS 652.200?” In their summary of argument, plaintiffs state: “The trial court erred in dismissing plaintiffs’ claim that the deductions from plaintiffs’ paychecks are a violation of ORS 652.610(3).” In their assignment of error, they state: “The court erred in granting defendant’s motion to dismiss plaintiffs’ claim that [defendant] violated ORS 652.610(3) in improperly making withholding *132from plaintiffs’ salary.” Defendant counters that the theory pled in plaintiffs’ complaint was that defendant was entitled to attorney fees under ORS 652.200 because defendant had failed to pay the full amount of wages due to each plaintiff but that the theory advanced by plaintiffs on appeal is a different theory based on ORS 652.610(3). Defendant argues that plaintiffs should not be permitted to change the theory underlying their claim on appeal. We do not see the complete change of theory that defendant perceives. Rather, the fundamental basis of plaintiffs’ claims was the same at trial and on appeal; it is also correct.
ORS 652.200(2) authorizes an award of attorney fees in any action for unpaid wages under ORS 652.110 et seq. ORS 652.610(3) prohibits an employer from “withhold[ing], deduct[ing] or diverting] any portion of an employee’s wages” unless specific circumstances, which are not present in this case, exist. ORS 652.615 provides for “a private cause of action for a violation of ORS 652.610(3) for actual damages or $200, whichever is greater[,]” and also allows the court to award reasonable attorney fees.
Defendant misconceives the nature of a claim for deductions that violate ORS 652.610.9 Plaintiffs allege that defendants improperly withheld the six percent deduction from plaintiffs’ wages and that defendant, thus, failed to pay all wages due to plaintiffs. That is sufficient to state a claim that defendant improperly withheld, deducted or diverted retirement account contributions from plaintiffs’ wages contrary to ORS 652.610(3). That statute describes certain permissible deductions from an employee’s wages and makes all other deductions impermissible. Thus, an employer who makes a deduction that ORS 652.610(3) prohibits has, as a matter of law, failed to pay wages in the amount of the deduction. The employee may recover those unpaid amounts by a claim for unpaid wages, and may recover attorney fees under ORS 652.200(2) if the employee prevails. The separate claim under ORS 652.615 is irrelevant to that right.
*133That is precisely how we treated the predecessor statute, former ORS 652.410, in Schulstad v. Hudson Oil Co., 55 Or App 323, 637 P2d 1334 (1981), rev den 292 Or 825 (1982). In Schulstad, we held that the defendant could not legally deduct alleged shortages from the plaintiffs wages. Based on that conclusion, we affirmed the trial court’s judgment awarding the plaintiff unpaid wages, penalty wages under ORS 652.150, and attorney fees under ORS 652.200(2). When the legislature adopted ORS 652.610(3) in 1977, it repealed former ORS 652.410 in the same act. Or Laws 1977, ch 618, §§ 1,2.10 The change gave greater detail to the former deductions statute, but there is no reason to think that the legislature intended the wage payment statutes to operate in any different fashion: an illegal deduction leads to a claim for unpaid wages. Plaintiffs’ arguments in this case are consistent with the law as we described it in Schulstad.
In contrast, ORS 652.615 creates a separate claim for a violation of ORS 652.610(3). The legislature created that claim in 1980, three years after it adopted ORS 652.610(3) in 1977. Before the creation of what is now ORS 652.615, the way to recover an illegal deduction was to file a normal wage claim.* 11 Nothing in the legislature’s action in creating a new, separate claim suggests that it intended to abolish the existing remedy; rather, the legislature added a new remedy to the existing one. Among other things, the separate claim includes a minimum damage amount, which is not available as part of a regular wage claim. Or Laws 1980, Spec Sess, ch 1, § 2 (creating claim as ORS 652.610(5)); Or Laws 1981, ch *134594, § 7 (moving claim from ORS 652.610(5) to separate section, now ORS 652.615).
In short, there is no such thing as a “claim” under ORS 652.610(3). Rather, when an employer deducts amounts that are illegal under that statute, the employee may file one or both of two different kinds of claims: (1) a regular wage claim under ORS 652.120 (requiring payment of all wages at regular paydays) or ORS 652.140 (concerning payment of wages at termination of employment); or (2) a specific claim for illegal deductions under ORS 652.615, which includes the minimum damage amount and a separate, possibly easier, right to attorney fees. In this case, plaintiffs have adequately pled a claim of the first kind, and that claim includes with it the right to attorney fees under ORS 652.200(2) if they are successful. The trial court erred in dismissing the wage claim.
Petition to reconsider decision allowed; original opinion vacated; on appeal, judgment on claims for breach of contract and violation of 42 USC § 1983 reversed and remanded; on cross-appeal, judgment on wage claim reversed and remanded; otherwise affirmed.
The judgment awards identical damages under each claim. Plaintiffs do not seek a different measure of damages in their section 1983 claim.
In its answer, defendant made a third-party complaint against the State of Oregon. Eventually, the complaint against the state was dismissed without prejudice based on a stipulation between defendant and the state. Although the state was named as a respondent in the Notice of Appeal, the Amended Notice of Appeal and the Notice of Cross-Appeal, the state did not file a brief or appear, nor do the parties raise any issues relating to claims against it.
ORCP 47 C (1997) provided, in part:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable júror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.”
Oregon Laws 1999, chapter 815, section 1, amended ORCP 47 C. Oregon Laws 1999, chapter 815, section 2, provides that the amendments to ORCP 47 C apply to all actions pending on or commenced after October 23,1999. The parties have not raised to us the issue of whether Oregon Laws 1999, chapter 815, applies to this case or affects the analysis used to resolve it. However, even if the legislature’s changes to ORCP 47 C apply, the outcome would not be affected.
To the extent that plaintiffs assert that Oregon State Police controls the outcome of this issue and requires summary judgment in their favor, we disagree. Oregon State Police decided whether Measure 8 was an unconstitutional impairment of contract. The issue of the amount of damages for which a public employer could be liable in the event that it breached an employment contract as a result of implementing Measure 8 was not before the court.
Based on plaintiffs’ arguments to us, we do not understand them to contest defendant’s ability to move for dismissal of the 1983 claim for the first time on appeal on those grounds. Consequently, we express no opinion on that issue.
The concurrence discusses a number of United States Supreme Court cases before concluding that any Contracts Clause violation did not give rise to a section 1983 claim. Because we conclude that there was no constitutional violation, we do not need to comment on the concurrence’s analysis.
Indeed, that result flows from plaintiffs’ complaint itself. In their First Claim for Relief, the section 1983 claim for impairment of contract, plaintiffs allege that “Measure 8 impairs the obligation of each plaintiffs pension contract with his or her employer.” (Emphasis added.) They do not allege that defendant’s ordinance did so. Their subsequent arguments in support of this claim, and the concurrence’s extensive discussion of those arguments, cannot overcome that basic point.
The concurrence suggests that the ordinance that the county adopted in itself impaired the obligation of the contracts. 169 Or App at 138-39. However, the *130ordinance shows that the county simply recognized that Measure 8 had changed its contractual obligations. The ordinance responded to the effects of Measure 8; it did not independently impair the obligation of the contracts. The timing of the ordinance does not affect the fact that Measure 8 was the impairing enactment and that defendant adopted the ordinance in response to that provision.
Defendant’s argument that the case is not about the payment of salaries but, rather, is about the payment of pensions also misses the mark. The money that defendants deducted came from plaintiffs’ current salaries; whatever the-ultimate disposition of that money, if the deduction was not one that ORS 652.610 authorizes, it constituted a failure to pay wages.
Schulstad involved events that occurred before the effective date of the repeal oí former ORS 652.410.
The concurrence describes the pleading sequence in Schulstad, apparently in the belief that it casts doubt on the relevance of that case, which involved former ORS 652.410, the predecessor of ORS 652.610(3), to this case. In fact, that pleading sequence simply shows one of the ways in which either the previous or the present deductions statute may function in a normal wage claim case. In Schulstad, the plaintiff pled a failure to pay him his wages and then relied on the deductions statute as a defense when the employer asserted that it had a right to deduct the unpaid wages. In this case, plaintiffs alleged the facts behind the deductions in their complaint and asserted that those facts constituted a failure to pay the full amount of their wages. Each approach is a different way to reach the underlying issue of whether the deductions statute permitted the defendant to withhold the unpaid wages.