In 1983, the Oregon legislature passed a law that made Oregon judges members of PERS, effective January 1, 1984. Ever since then, Oregon judges have taken the position that all PERS cases must be decided by PERS judges. But is that what the Oregon legislature intended when it put the judges into PERS? An examination of the history of that 1983 law and another law that was enacted by the legislature just a few days later answers that question. No, the legislature did not want PERS judges to decide PERS cases.
That other law created an exception to the rule that disqualified a judge when the judge had an interest in the case. Prior to this change, if a judge had an interest in a case the judge was disqualified from deciding that case. This 1983 law changed that rule to create one exception. A judge would not be disqualified from the case if the judge was named a party after taking any official action in the case. In that situation, the judge would be dismissed as a party. After the judge was dismissed, the judge no longer had an interest in the case and could continue as the judge.
By enacting this exception, the legislature showed that it would not always require a judge with an interest in a case to be disqualified and when it wanted to make an exception to the general judicial disqualification rule it would do so.
The law that put the judges into PERS was passed by both the House and the Senate on July 13, 1983. The law that changed the judicial disqualification rule was passed by the House and the Senate on July 15, 1983, two days after they passed the law putting the judges into PERS. At the time the legislature passed the new judicial disqualification law it knew that judges would have a conflict of interest in PERS cases because it had already put the judges into PERS. But the legislature made no exception to the judicial disqualification rule that would allow PERS judges to decide PERS cases. It could have done so if it wanted to but it did not.
The only conclusion that can be drawn from this is that the legislature did not intend for PERS judges to decide PERS cases and there was no reason for the legislature to have such an intention. The legislature had already passed laws that allowed attorneys to be appointed as temporary judges to decide cases when all of the judges had conflicts of interest.
The only reason that PERS judges decide every PERS case today is because PERS judges have said they are the only ones who can. And in almost every case, no one has challenged that decision. I am the only exception. I have challenged it five times so far and each time the PERS judges have denied my request for an independent judge. But this fight is not over, it’s just getting started. The next skirmish will take place on August 23, 2012 when oral arguments will be made in my case, Daniel C. Re v. PERS, in the Oregon Court of Appeals. I won’t quite until I win.
While it is true that I have never won a PERS case that was decided by a PERS judge, it also true that I have never lost a PERS case that was decided by an independent judge. The only problem is that so far the PERS judges have not let me have an independent judge.