Many PERS members argue that there is no problem in having judges who are PERS members decide PERS cases because the judges are not really part of the same PERS retirement system that other public employees are in. But that argument is wrong. While judges are in a separate PERS plan that applies only to judges, many of the benefits and rules that apply to the plan for judges are exactly the same as the benefits and rules that apply to all other PERS member. Among other common benefits shared by all PERS members, including judges, are: the PERS pick-up, cost of living adjustments and guaranteed minimum rate of return on Tier One member accounts.
In fact, judges even have some rights that are similar but superior to the rights of all other PERS members. Those superior PERS rights for judges only include:
- No probationary waiting period before becoming a PERS member. All other PERS members have a six month probationary waiting period.
- The PERS pick-up for judges is mandatory by law. It is not subject to negotiations like it is for all other PERS members. And the biggest superior pick-up benefit that judges have is that their pick-up amount is seven percent of salary, not six percent like it is for all other PERS members who receive the pick-up. So when ever a PERS lawsuit involves the PERS pick-up, as if did in the Oregon State Police Officers’ Association case that invalidated Ballot Measure 8 in 1996, the judges have more skin in the game than anyone else.
- All judges are either members of Tier One or Tier Two, no matter when they first join PERS. Any person who is not a judge and who first becomes a PERS member after September 29, 2003, is a member of the lower benefit Oregon Public Service Retirement Plan. A judge who becomes a PERS member after that date is a Tier Two member.
The three most significant PERS cases decide by the Oregon Supreme Court, in my opinion, are: Hughes v. State, in 1992, which held that certain PERS benefits were contractual rights; the Oregon State Police Officers’ Association v. State case decided in 1996; and, the Strunk case decided in 2005 which invalidate many of the PERS changes made by the 2003 legislature. Each of those cases involved PERS benefits that the judges were receiving or would receive after they retired. So if anyone tells you that the fact that judges are PERS members does not disqualify them from deciding PERS case because they are really in a different PERS plan, don’t believe them. Ask that person if he or she is a PERS member or related to a PERS member. Most likely they are and they want to keep the unfair advantage that they currently have in all PERS lawsuits. That advantage is having the case decided by a judge who has the same or greater financial risk at stake in the case as they do.
But that is fundamentally unfair and it never existed during the first twenty-five years of PERS. For that first twenty-five years, judges had their own independent retirement plan and they had no conflict of interest when they decided PERS cases. The impartiality of the judges deciding PERS cases was ended by the 1983 legislature that was composed of eighty-four PERS members and six non-PERS legislature. That legislature forced every Oregon elected judge to join PERS effective January 1, 1984.
As recognized in an old African proverb, “Corn cannot expect justice from a court composed of chickens”. As hard as the judges try to be impartial when their own financial interests are at stake in a lawsuit, they simply cannot be. Judges are human and it is contrary to human nature for a person to rule against the financial interest of that person and his or her family. Everyone knows that and it is why conflict of interest rules have existed for centuries. The first written record I have found of rules allowing for the disqualification of judges was contained in the Code of Justinian, which was complied in 532 A.D. That Roman Empire Code provided that if a person before a Roman court felt the judge was biased, that person could recuse the judge and have the case decided by another judge who was not biased. The people of Oregon have every right to have PERS cases decided by judges who are impartial just like Roman citizens had almost 1500 years ago and we had before 1984. We must demand that the right to impartial judges in PERS cases be restored to us as soon as possible.