On December 6, 2011, an article published on the Oregon AFSCME Council 75 website included comments from long time public employee union attorney Greg Hartman on the lawsuit I have filed to invalidate certain PERS administrative rule. One of the primary issues in that case is whether judges who are PERS members can decide PERS cases. It is my position that due to each PERS judge having a direct financial conflict of interest in every PERS case, judicial ethics, state law, the Oregon Constitution and the U.S. Constitution prevent them from doing so.
With respect to that issue, Mr. Hartman is quoted as saying “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.”
Mr. Hartman’s statement that the U.S. Supreme Court has acknowledged the rule of necessity in certain circumstances is correct. But the U.S. Supreme Court has never recognized the rule of necessity applying in a case like this. Under the rule of necessity, judges with conflicts of interest can still decide a case if it is impossible to find other judges without the conflict. Since Oregon’s judges are PERS members, it might appear that a necessity exists. To the extent a conflict exists, however, the conflict was not created out of necessity but for the political advantage of PERS members and it deprived Oregonians of their constitutional right to unbiased judges. That makes the law putting the Oregon judges into PERS unconstitutional, unless there is a way to appoint non-PERS judges to decide PERS cases.
Here is how the judges’ PERS conflict came to be:
- From 1945 when PERS was created until 1984, a period of 40 years, Oregon’s judges had their own independent retirement plan and they had no conflict with PERS.
- In 1971, Oregon legislators were allowed to join PERS for the first time. Most of them joined and during the next ten years they doubled PERS retirement benefits.
- In 1984, when 84 of the 90 legislators were PERS members, they forced all new Oregon judges to join PERS and they promised all existing judges a 7% salary increase if they would join PERS. The PERS legislators even gave the judges some PERS benefits that were greater than the benefits that other PERS members had.
- The reason the PERS legislators put the judges into PERS was to prevent the people of Oregon from changing the PERS benefit increases though an initiative ballot measure. If the people did that the judges would have to decide if the initiative was valid. If the judges had the greatest amount to lose in upholding the ballot measure, it’s not likely that they would do so.
And this is how putting the judges into PERS paid off for the PERS legislators and all other PERS members:
- In 1994, the people of Oregon passed Ballot Measure 8 which eliminated the PERS pick up, eliminated the guaranteed minimum rate of return on PERS members accounts and eliminated unused sick leave being treated as salary for PERS retirement purposes.
- PERS members challenged Ballot Measure 8.
- The case went to the Oregon Supreme Court. Each one of the Supreme Court justices received the PERS pick up and they actually received a higher pick up amount, 7% of salary, than all other PERS members who had a 6% pick up; the justices received the guaranteed minimum rate of return and they were able to treat unused sick leave as salary to determine their retirement benefit. As a result, the Supreme Court justices had more to lose than all other PERS members if they upheld Ballot Measure 8.
- The Supreme Court declared Ballot Measure 8 unconstitutional and their retirement benefits were preserved.
In response to Mr. Hartman’s question “What are you going to do?”, the answer is simply. Appoint temporary non-PERS attorneys as judges to decide PERS cases. That is not only possible under Oregon law, it is required by prior Oregon Supreme Court decisions, by the Oregon Constitution and by the U.S. Constitution. Failure to do so makes the 1984 law putting Oregon’s judges into PERS unconstitutional. Independent judges are a fundamental right under our legal system that cannot be taken away by PERS legislators or anyone else.