My lawsuit that is pending in the Oregon Court of Appeals, Re v. PERS, Case No. A148575, asks the court to invalidate certain regulation concerning PERS benefits for judges. But the case is about something much more important than PERS benefits for judges. It is about the ability of the Oregon legislature to take away a basic legal protection from the people of Oregon. It is about the fundamental rights of the people and the power of the legislature.
PERS was created in 1945 and neither legislators nor judges were able to join PERS. The legislators and the judges are representatives of all Oregonians and their exclusion from PERS insured they were neutral when making PERS laws and deciding PERS cases. The people of Oregon, who pay for PERS, have the right under Oregon law, the Oregon Constitution and the US Constitution to neutral judges.
The PERS neutrality of legislators and judges began to change in 1971, when the Oregon Attorney General ruled that legislators could join PERS. Most legislators did join and they doubled PERS retirement benefit during the next ten years. Then, in 1983, the PERS legislators made the Oregon judges join PERS. There was no good reason for making the judges join PERS since they had been in a separate retirement plan since 1943, two years before PERS was created.
I believe that current Oregon law requires the PERS judges to disqualify themselves from hearing PERS cases and to appoint temporary, non-PERS judges to hear those cases. But, if it is impossible to do that, then the law that put Oregon’s judges into PERS in 1983 is unconstitutional because it took away our right to neutral judges.
Since before the magna carta was signed in 1215, people have recognized that a person can not be the judge of that person’s own case. But that is exactly what the Oregon legislature did in 1983. It made the Oregon judges the judge of their own PERS cases. That flunks the smell test and every other test that reasonable people have developed to evaluate the acts of lawmakers.
My case is the first one to ever raise this issue and it will succeed in restoring neutral judges to all Oregonians to decide PERS cases, although that may have to be done in federal court.
Stay tuned as PERS is scheduled to file its response to my suit by this Thursday, January 19, 2012. I will let you know what it says.