It has long been recognized that the right to an unbiased judge is a fundamental requirement of our legal system. An ancient legal maxim states that “no man shall be the judge of his own case”. The reason for requiring unbiased judges is not only to ensure that judicial proceedings are fair but to also ensure that those proceeding appear to be fair. The appearance of fairness is essential for the legitimacy of judicial decisions.
The Due Process Clause of the U.S. Constitution, the Remedies Clause of the Oregon Constitution, Oregon Revised Statute 14.210(1)(a) and the Oregon Code of Judicial Conduct, JR 2-106(A)(3), all provide us with the right to unbiased judges. The only time a biased judge can decide a case is when it is impossible to find any unbiased person who can serve as the judge. In such cases, the rule of necessity applies. The rule of necessity is often used in income tax cases because anyone qualified to serve as a judge is subject to the income tax laws.
Prior to 1984, Oregon judges had their own retirement plan and they were not eligible to join PERS. During that time, the judges were unbiased when hearing PERS cases. But in 1983, when 84 of the 90 Oregon legislators were PERS members, the legislature passed a new law that required all Oregon judges to join PERS, effective January 1, 1984. Thereafter, Oregon judges have been biased when hearing PERS cases. Their financial future and the financial future of their families will depend on the decisions they make in PERS cases. Since 1984, the PERS judges have consistently held that it is impossible to find any non-PERS person who could serve as a judge and so they have invoked the rule of necessity and have decided those cases.
The Oregon judges had never been challenged when invoking the rule of necessity in PERS cases until October, 2010. That’s when I filed a claim for refund of property taxes in the Oregon Tax Court. I alleged that I was required to pay property taxes which were used to pay PERS pick up contributions and that the payment of PERS pick up contributions was prohibited by the Oregon Constitution. I filed a motion to disqualify the tax court judge, based on his PERS membership. I asked that a temporary non-PERS judge be appointed to decide my case. Oregon law provides a procedure to appointment temporary judges in cases like this. My request, however, were denied. I then appealed to the Oregon Supreme Court but that court also denied my request. Neither court was required to explain its decision and neither did.
I now have another case pending in the Oregon Court of Appeals that raises this same question. So far, in preliminary actions, the Court of Appeals judges have refused without explanation to disqualify themselves from this case, despite the fact that they are all PERS members. My appeal to the Oregon Supreme Court on this issue was also denied by the justices who are all PERS members. It is possible that the Court of Appeals will specifically address this issue when deciding the merits of my case. If so, it will be the first time any Oregon court has done so.
The right to an independent judge is a basic, fundamental entitlement that has existed for centuries. For the first thirty-nine years that PERS existed, independent judges decided PERS cases. It was only after legislators were allowed to join PERS and after PERS legislators spent ten years doubling PERS benefit that they forced Oregon’s judges to join PERS.
If the judges are correct in their conclusion that the legislature can make them the judges of their own PERS cases, what they are really saying is that the Oregon legislature has the authority to terminate the people’s constitutional and statutory right to unbiased judges in any type of case. If the legislature can do that, the people have lost their most effective safeguard against government abuse. I do not believe that the Oregon legislature or any other legislature has the right to take our rights away.
That’s why this battle for independent judges is critical for Oregon’s future and that’s why I am fighting for independent judges. I don’t think I will win this fight, I know I’ll win it.