On October 3, 2013, the Oregon Supreme Court granted Central Oregon Irrigation District’s (COID) motion to intervene in the SB 822 litigation. That litigation was initiated by PERS members who want to invalidate the reductions that SB 822 made to PERS benefits.
The Supreme Court also gave all parties to that litigation until October 17, 2013 to respond to the motions that COID made to disqualify the Supreme Court Justices and the special master appointed by the Supreme Court from participating in the SB 822 litigation. Those motions to disqualify were made on the grounds that all of the Supreme Court Justices and the special master are PERS members whose PERS benefits are at risk in the litigation. COID has argued that temporary judges who are not PERS members can be appointed to decide the case.
It will be very interesting to see which of the parties, if any, file a response to the motions to disqualify. By filing such a motion, the party would be arguing that PERS members are legally entitled to have all PERS cases decided by judges who are PERS members. As absurd as that position is, that is what the situation has been for the last twenty-nine years. Due to a law passed by the legislature in 1983, all Oregon elected judges have automatically become PERS members as soon as they take office since January 1, 1984. That law made Oregon’s elected judges the only elected officials who automatically become PERS members. All other elected officials in Oregon have a choice to join PERS but are not required to join it.
And despite the fact that Oregon law specifically allows non-PERS temporary judges to be appointed to decided cases, the elected Justices of the Supreme Court have rejected that possibility for PERS cases and have required all PERS cases to be decided by PERS judges. So.it is my guess that the PERS members who are suing to invalidate the SB 822 PERS reductions will respond to the motions to disqualify the Justices and the special master. Having the SB 822 case decided by PERS judges who have the same risk of lower PERS benefits as they do, if SB 822 is upheld, gives those PERS members a big advantage, a very BIG advantage.
After all, PERS benefits did not get to where they are today until after Oregon’s judges became PERS members and started deciding all PERS cases. It was PERS judges who invalidated Ballot Measure 8 which was passed by the people of Oregon in 1994. Ballot Measure 8 eliminated the PERS pick-up, the guaranteed minimum rate of return on PERS employee accounts and the use of unused sick leave to increase a PERS members final average salary. It was also PERS judges who decided for the first time, after they became PERS members, that PERS benefits were actually a contract. Before that happened, the legislature and the people of Oregon, through the initiative, could change any PERS law prospectively. And the judges also invalidated many changes to PERS made by the 2003 legislature.
Those actions by the judges have cost the people of Oregon billions of dollars every year in funding PERS benefits that had been eliminated by the people but reinstated by the judges. Were those decisions wrong? Maybe but maybe not. It is impossible to tell but the credibility of those decisions was clearly affected by the fact that the judges making the decisions had a personal financial stake in the outcome cases and the actual outcome financially benefited them significantly.
Having judges who are PERS members decide PERS cases is just wrong. It does not have to be that way. The right to impartial judges in PERS cases must be restored to the people of Oregon. We have that right in every other type of case and there is no justification for carving out an exception for PERS cases.