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.