In 1983, the Oregon legislature passed a law that made all persons becoming a judge in 1984 or later PERS members. Persons who were judges prior to 1984, were offered a 7% salary increase to join PERS. Before this new law went into effect, Oregon’s judges had their own separate retirement plan, the Judges Retirement Fund. Since the judges were not PERS members before 1984, they did not have a financial conflict of interest in any PERS case. After the law went into effect, however, every Oregon judge had a financial conflict of interest in every PERS cases.
The due process clause of the US constitution guarantees a person the right to a judge who does not have a financial interest in the outcome of the case when the state wants to take that person’s property. After all Oregon judges were made PERS members the only way independent judge could hear PERS cases was by appointing temporary judges to hear those cases but the Oregon judges have not done so. They have not even been asked to do so until 2011. I asked them to appoint temporary non-PERS judges to hear my PERS tax refund case but they declined to do so. Instead, they have decided PERS cases themselves.
I believe the decisions by the judges to hear PERS cases is unconstitutional. The rule known as the separate application of a statute requires the judges to appoint temporary non-PERS judges to hear PERS cases if the law permits them to do so and Oregon law does permit that to happen. I also believe that any PERS case decided by PERS judges is void. That means the decision in such a case never existed. This issue is again pending in the Oregon Court of Appeals in Re v. Public Employee Retirement System. That case will eventually decide whether a state legislature can terminate federal constitutional rights. I do not think any state legislature can do that under the circumstance that existed with the Oregon judges and PERS. I will continue to press that issue in court until it is specifically addressed and decided. Most likely, that will occur in federal court.