PERS was created in 1945. From 1945 through 1983, a period of 38 years, Oregon judges were not PERS members. The judges had their own independent retirement plan, which had been created for them in 1943. When the judges decided PERS cases, their personal retirement benefits were not affected by the decisions they made. That judicial impartiality in PERS cases ensured that all of the parties before the court were treated fairly.
Legislators were also prohibited from joining PERS in 1945. That continued until 1971, when the Oregon Attorney General ruled that legislators could join PERS. Thereafter, most legislators did join and between 1971 and 1981, those PERS legislators more than doubled PERS benefits. Then, in 1983, when 84 out of the 90 Oregon legislators were PERS members, that’s 93%, they passed a law that caused all Oregon judges who held an elected position to become PERS members. That law became effective January 1, 1984 and since that date all PERS lawsuits have been presided over by judges who had a direct financial stake in the outcome of the case. As a result, none of the parties in those cases have been treated fairly. PERS members have had an unfair advantage and non-PERS members have had an unfair disadvantage.
Under that 1983 law, all persons becoming elected judges for the first time after 1983 became PERS members automatically the minute they took office. This prevented them from being impartial when deciding PERS cases because their personal retirement benefits could depend on the outcome of the case. For persons who were elected judges before 1984, the PERS legislators gave them the choice of remaining in their existing non-PERS retirement plan or joining PERS. If an elected judge decided to stay in the existing plan, the PERS legislators required that judge to pay 7% of his or her salary to the plan each month. But, if the same elected judge joined PERS, the PERS legislators required the people of Oregon to pay the 7% contribution for that judge. As a result, each pre-1984 elected judge was offered a 7% salary increase if the judge joined PERS.
Of the 90 Oregon legislators in 1983, 78 of them voted on the bill that forced the elected judges to join PERS, while 12 legislators were excused. Of the 78 legislators who voted, 77 voted for the bill. Only 1 legislator voted against it. Did those 77 legislators who voted for the bill commit crimes when they:
- forced all post-1983 elected judges into PERS and thereby made their retirement benefits dependent upon the decisions they would make in PERS cases; and,
- offered all pre-1984 elected judges a 7% salary increase if they joined PERS?
If the law that put judges into PERS made it impossible for non-PERS judges to decide PERS cases, those 77 legislators who voted for the bill just may have committed crimes. Here’s why:
The Crime Of Obstruction Of Judicial Functions. A person commits the crime
of obstructing judicial administration if the person intentionally obstructs, impairs or hinders the administration of judicial function by means of economic interference or obstacle. It is a Class A misdemeanor. See ORS 162.235. When the 77 legislators forced all persons who became elected judges after 1983 into PERS, they made the retirement benefits of those judges dependent on what the PERS laws were. That could be intentional impairment of judicial function by means of economic interference because the judges interest in PERS would prevent them from deciding PERS cases impartially. But that could happen only if there was no way to appoint non-PERS judges to decide PERS cases.
The Crime Of Bribe Giving. A person commits the crime of bribe giving if the person offers any pecuniary benefit to a public servant with the intent to influence the public servant’s vote, opinion, judgment, action, decision or exercise of discretion in an official capacity. It is a Class B felony. See ORS 162.015. When the PERS legislators who passed the law that gave non-PERS judges a 7% salary increase if they joined PERS, that could be viewed as an offer of pecuniary benefit by those legislators to the judges with the intent to influence the judges votes, opinions, judgments, actions, decisions or exercises of discretion in an official capacity when they decided PERS cases. But that could happen only if there was no way to appoint judges who were not PERS members to decide PERS cases.
I don’t know how Kate Brown feels about this but I think that those 1983 legislators who voted for the bill to put Oregon’s elected judges into PERS may have committed crimes in doing so if, as a result of forcing the judges into PERS, all PERS cases after 1983 would have to be decided by PERS judges. My case that is currently pending in the Oregon Court of Appeals, Re v. PERS, CA No. A148575, should answer that question.