In October, 2010, I filed a claim for refund of property taxes in the Oregon Tax Court. I argued that a portion of my property taxes were being used to pay PERS pick up contributions and that the payment of PERS pick up contributions was prohibited by amendments made to the Oregon Constitution by Ballot Measure 8. Although Ballot Measure 8 was declared unconstitutional by the Oregon Supreme Court in 1996, I took the position that the 1996 decision was void because all of the Supreme Court justices were disqualified from deciding it due to their financial conflict of interest. If I am correct, the Supreme Court decision that invalidated Ballot Measure 8 is void and legally, it never existed. That would mean that Ballot Measure 8 is still the law and that the picking up of employee PERS contributions has been illegal since January 1, 1995.
The Tax Court judge was a PERS member whose was receiving the PERS pick up and I asked him to disqualify himself due to his financial conflict of interest. I requested that a non-PERS judge be appointed to decide the case. The Tax Court judge denied my request without explanation, which he was entitled to do.
I then asked the Oregon Supreme Court to disqualify the Tax Court judge and appoint a temporary judge who was not a PERS member to decide my refund case. Since all members of the Oregon Supreme Court were also PERS members, I asked them to disqualify themselves and appoint temporary non-PERS judges to decide whether the Tax Court judge should be disqualified. The Supreme Court denied both of my requests, without explanation.
After the above actions, I dismissed that Tax Court case because it was not possible to have an independent judge decide it. I then filed an action in the Oregon Court of Appeals, challenging certain PERS administrative rules, arguing that those rules violated the amendments to the Oregon Constitution that were made by Ballot Measure 8 on the same grounds that I argued in the Tax Court case. I also asked the Court of Appeals to disqualify all of its judges who were PERS members from deciding this case. Last week, the Court of Appeals, without explanation, denied that motion.
It is very clear from the decisions in my tax refund case and so far in the Court of Appeals case that the Oregon judges believe that any case involving PERS can legally be decided by judges who are in PERS. Even when those PERS judges have a substantial financial interest in the outcome of the case. If the decision goes one way, the judges make money. If the decision goes the other way, the judges lose money. Generally, a judge with that type of financial conflict of interest is prohibited from hearing the case.
Eventually, this matter will go to the federal courts and that will be the first time that this issue will be presented in a court that is not controlled by PERS members. I will post future developments in this case as they occur.