PERS, The Oregon Legislature And The US Constitution

Does the Oregon legislature have the power to enact laws that  deprive people of their federal constitutional rights?  For example, when the Oregon legislature passed a law that put all state judges into PERS in 1983, did the legislature have the power to do that?  If it did not, that law would be unconstitutional, a complete nullity that never have had any effect and the Oregon  judges would not be PERS members. 

The Due Process Clause of the 14th Amendment to the US Constitution guarantees that when a state attempts to take a person’s life, liberty or property through court proceedings, the person subject to those proceedings has the right to have the case decided by a judge who does not have a financial interest in the outcome of that case.  The right to an independent judge is fundamental to our system of law.  Consequently, the law passed by the Oregon legislature in 1983 which put Oregon’s judges into PERS  would be unconstitutional unless other Oregon laws allowed non-PERS judges to decide PERS cases.    It cannot be both ways, if the judges hear PERS cases, they cannot be in PERS.  If they do not hear PERS cases, they can be in PERS.

While the question regarding PERS judges deciding PERS cases has not been specifically addressed yet by the Oregon Supreme Court, that question is now before the court.  I believe that Oregon law does permit non-PERS judges to be temporarily appointed to  hear PERS cases and courts go to extraordinary lengths to find that laws are not unconstitutional.  Legal doctrines exist that even allow one law to be applied differently in different situations if the law would be unconstitutional under one set of facts but constitutional under other facts.  In such cases, the law would not be applied to the facts that made it unconstitutional.

Hopefully, we will have the Oregon Supreme Court’s opinion on this important issue regarding PERS cases soon.   The final decision will be a key factor in the future of PERS and the future of Oregon.


About Dan Re

I am an attorney who has lived in Bend and practiced law since 1981. In educating myself about the Oregon Public Employees Retirement System (PERS), I was shocked at how the PERS laws were changed by the legislature, once legislators were allowed to join PERS in 1971, 26 years after PERS was first created. Those changes personally benefitted the legislators who made them at the direct financial expense of the people they were elected to represent. That is wrong and I intend to change it. In 2009, I started a non-profit 501(c)(4) corporation, In RE The People, Inc., for the purpose of informing concerned citizens of what happened regarding PERS and other issues of social and civic importance. I then created this blog to further that objective.
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