The Judges Of Their Own Case – Or Maybe Not

Our legal system is based on the English common law.  Since at least 1215, the year the magna carta was signed, the common law recognized that no person can be the judge of that person’s own case.  That was fundamentally unfair and violated the law of the land which  is known today as due process of law.

Common law due process was specifically guaranteed to us by the U.S. Constitution.  A law that makes a person the judge of that person’s own is repugnant to the U.S. Constitution.  Such a law is void and never legally existed.   This has been specifically recognized by the U.S. Supreme Court since 1803.

From 1945, when PERS was first created, until 1984, Oregon’s judges were not PERS members.  They had their own independent retirement plan.  As a result of this independence from PERS, when Oregon judges decided PERS cases during that period they were not acting as judges of their own case.

But that changed effective January 1, 1984.  The PERS legislators, who made up 84 out of the 90 Oregon legislators in 1983, passed a law that made the judges join PERS.

  • Persons becoming a judge for the first time after 1983 automatically became PERS members if they were less than 72 years old.  PERS judges had a 7% employee contribution but that contribution was required to be picked up for them.
  • Existing judges were able to join PERS or stay in their original retirement plan.  If they stayed in the original plan, they had to pay 7% of their salary to that plan.  If they joined PERS, however, their 7% contribution would be picked up.  That gave each judge who joined PERS an immediate 7% raise.
  • The 7% employee PERS contribution for judges was higher than all other non-judge PERS members who had a 6% contribution amount.  That made the PERS pick up benefit, under which the employee PERS contributions were paid for PERS members by the people of Oregon, more valuable to judges than to all other PERS members.  If that pick up benefit was eliminated, the judges would lose the most.

As a result of the law putting the Oregon judges into PERS, they became the judges of their own cases regarding PERS, unless it was possible under Oregon law for non-PERS judges to be appointed to decide PERS cases.  If that was not possible, that law would be unconstitutional and the judges would not be PERS members.

In 1994, the people of Oregon pass Ballot Measure 8 which eliminated the following benefits for PERS members, including the judges:

  • the  PERS pick up;
  •  the guaranteed minimum rate of return on employee PERS accounts;  and,
  •  the use of unused sick leave to increase the PERS retirement benefit.

In 1995, PERS members sued to have Ballot Measure 8 declared unconstitutional.   If Ballot measure 8 was upheld, PERS members, including the PERS judges, would have to pay their own employee contributions, they would not receive a guaranteed minimum return on their employee contribution accounts and they would not be able to increase their retirement pension by using unused sick leave as part of their final average salary.

That case was argued to the Oregon Supreme Court and the participants in that hearing were:

  •     The people who sued to invalidate Ballot Measure 8, all of whom were PERS members;
  •      The attorneys and staff of the Oregon Department of Justice, who defended Ballot Measure 8,  all of whom were PERS members; and,
  •      The Oregon Supreme Court Justices who decided the case, all of whom were PERS members.

If Ballot measure 8 was upheld, all of the participants in that case would lose money.  The judges recognized their conflict of interest but held that it was impossible for non-PERS judges to be appointed to decide the case so they were able to act as the judges of their own case.  No one brought up the fact that if it was impossible to appoint non-PERS judges to decide the case, the law that put the judges into PERS in 1984 was unconstitutional.  But the person who could have and should have raised that point, the Oregon Attorney General, Theodore Kulongoski,  who was representing the people of Oregon was also a PERS member and he would lose money if Ballot Measure 8 was upheld.

In 1996, the Oregon Supreme Court held that  Ballot Measure 8 was unconstitutional and the justices who made that decision, along with all other PERS members, did not lose one cent of PERS benefits.  Clearly, in that case, the Supreme Court justices were the judge of their own case.   That is unconstitutional and the legal action I have initiated will eventually establish that fact.  If the Oregon judges are PERS members, they cannot decide PERS cases.

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About Dan Re

I am an attorney who has lived in Bend and practiced law since 1981. In educating myself about the Oregon Public Employees Retirement System (PERS), I was shocked at how the PERS laws were changed by the legislature, once legislators were allowed to join PERS in 1971, 26 years after PERS was first created. Those changes personally benefitted the legislators who made them at the direct financial expense of the people they were elected to represent. That is wrong and I intend to change it. In 2009, I started a non-profit 501(c)(4) corporation, In RE The People, Inc., for the purpose of informing concerned citizens of what happened regarding PERS and other issues of social and civic importance. I then created this blog to further that objective.
This entry was posted in fundamental fairness, Oregon judges, Oregon legislators, Oregon legislature, Oregon PERS and tagged , , , , . Bookmark the permalink.

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