|The following article was posted on the Oregon AFSCME Council 75 website in response to my PERS lawsuit. Mr. Hartman, a long time public employee union attorney made a number of comments in the article, including the observation that there are legal precedents on the matters I have raised and every one of them go against me. He is absolutely right. But what he didn’t say was that every one of those precedents came from judges who were PERS members and whose PERS retirement pay was enhanced by the precedents they set.
It is equally true to say that I have NEVER lost a PERS case that was decided by a non-PERS judge. That’s because I have NEVER been given the chance to have a PERS case decided by a non-PERS judge. When I ask for one, the PERS judges just say NO. That’s what my lawsuit is all about, restoring fairness to PERS court decisions. That idea seems to frighten AFSCME and it should.
Case challenging PERS decisions likely ‘not going anywhere’
|A Bend attorney wants a ‘temporary Supreme Court’ to overturn two old decisions|
There’s been some media play recently regarding a Bend attorney that’s filed a lawsuit seeking to invalidate two Oregon Supreme Court decisions related to cutting pension benefits for public employees. But the union’s top PERS attorney essentially says don’t hold your breath.
Bend lawyer Daniel Re has filed a brief in the Oregon Court of Appeals alleging that the judges who decided the cases had a conflict of interest because they would eventually receive pensions from PERS. Re has particularly targeted the decision that overturned Bill Sizemore’s Ballot Measure 8 from 1994, and the portion of the more recent Strunk case that said the state can’t roll back benefits already promised to retirees. (See details on the two cases below.)
PERS Coalition attorney Greg Hartman says there is case precedence for Re’s arguments — except those precedents all go against him.
“These types of arguments have been heard before, and they fall under ‘rules of necessity’ clauses,” said Hartman. “That is, yes, the Oregon Supreme Court judges are part of PERS. All Oregon judges are. What are you going to do? The U.S. Supreme Court has acknowledged the rule of necessity in certain circumstances, and this is obviously one such circumstance.”
Re, says Hartman, has been pushing this idea for several years, penning articles for the state bar magazine while losing decisions in the lower courts.
“I don’t imagine the Oregon Court of Appeals is going to overturn the state Supreme Court, nor do I think the Supreme Court would overturn itself on this issue,” said Hartman. “It seems highly unlikely the U.S. Supreme Court would hear the case. And Mr. Re’s allegations don’t mean that the justices got the legal decision wrong, no matter what their stake is in PERS.”
Re has advanced a convoluted proposal that would involve older lawyers appointed in a temporary trial court, then further appointing them as a sort of “temporary Oregon Supreme Court” only to hear PERS cases. That idea, says Hartman, has no legal precedent.
“It’s a novel concept,” says Hartman. “I’m not too worried that it’s going to go anywhere.”