UPDATE To PERS Justice In Oregon and SB 822

The following New Paragraph supplements the information contained in my post of  September 17, 2013 about PERS Justice in Oregon and SB 822.  It further illustrates the absolute power PERS members have over the PERS laws and the injustice that has been forced upon the people of Oregon.  PERS was not originally set up this way.  During its first twenty-five years, legislators and judges were not PERS members.  During this period, PERS retirement benefits remained constant at 50% of final average salary after a full career.  Only after legislators were allowed to join in 1971 by the Attorney General did the benefits escalate and only after judges were forced to join PERS did the judges decide that PERS benefits were a contract that only PERS members could modify.  I believe that the PERS changes made by PERS legislators and PERS judges are invalid.  I am dedicated to having those  laws and court decisions thrown out.

NEW PARAGRAPH:  In addition to the PERS conflict of interest that exists for the Supreme Court justices and the special master in the SB 822 litigation, there is another player in the lawsuit that also has the same conflict.  One of the parties to the suit is the State of Oregon, which represents the interests of all Oregonians.  The State of Oregon is represented in the lawsuit by the Oregon Attorney General and Assistant Attorney Generals.  All of those persons are also PERS members and if SB 822 is upheld, the stand to lose retirement benefits.  It is beyond dispute that the PERS justice system in Oregon is totally controlled by PERS members.

Dan Re

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PERS Justice In Oregon And SB 822

The 2013 Oregon Legislative Assembly passed SB 822, which reduced two PERS benefits.  The benefits reduced were:  (1) annual cost of living increases for retired PERS members; and, (2) the elimination of increased retirement benefits for retired PERS members who are not Oregon residents.  This second benefit is intended to offset Oregon income tax paid on PERS benefits and it is only available to PERS members who received their first PERS payment before January 1, 2012.

PERS members have sued to have SB 822 declared invalid and they have every right to do so.  If those PERS members succeed and win the lawsuit, the reductions in PERS benefits made by the legislature will be thrown out and the PERS retirement benefits will remain as they are.  That will be good for PERS members but not good for non-PERS members, who make up over 92% of the Oregon’s population and who pay most of the cost for those PERS retirement benefits.

The PERS lawsuit will be decided by the seven justices of the Oregon Supreme Court.  Each one of those justices is a PERS member in his or her capacity as a judge, since every elected judge automatically becomes a PERS member the seconds he or she takes office.  Additionally, four of the justices are also regular PERS members for public service performed before they were elected judges.  The PERS retirement benefits of each one of those justices is at risk in this lawsuit.  If SB 822 is upheld, the cost of living increases they will receive after they retire will have a lower  annual increase than the increase they would get under the current law.   As a result, those justices have a financial interest in the outcome of the SB 822 lawsuit.

The Supreme Court justices have also appointed a Special Master to hold hearing to determine what the facts of the case are.  The Special Master will then present his proposed fact to the Supreme Court.  The Supreme Court will decide the case by applying the law to the facts accepted by the Supreme Court.   The Special Master is an Oregon judge and, as a result, is also a PERS member.  He is also a regular PERS member for public service performed before he became a judge.  Therefore, he has the same financial risk in the outcome of the case as the Supreme Court justices have.

As a result, SB 822 will not actually reduce PERS benefits unless the PERS judges approve the reduction by upholding SB 822.  Generally, judges with a conflict of interest in a case cannot decide the case.   The major exception to this general rule is if it is impossible to find judges to decide the case who do not have the conflict of interest.  All Oregon elected judges do have the same PERS conflict.  But there are other judges, temporary judges, who have the same power and authority as elected judges, who are not PERS members who could decide PERS cases.  Therefore, the exception to the general rule should not apply.  As of today, however, Oregon’s elected judges have refused to appoint temporary judges to decide PERS cases and this has created the situation where no PERS laws can be changed unless PERS members approve the change.

The legislature created this problem when it forced all elected judges to be PERS members, effective January 1, 1984.  During the first thirty-eight years that PERS existed, from 1945 – 1983, Oregon judges had their own separate retirement plan and they were not PERS members.  All PERS cases were decided by impartial judges.  If you like the current PERS justice system, where PERS members must approve any change to the PERS laws, let your legislator know.  But if you do not like the current system, let your legislators know that.  They can change the system if they want to but so far the majority of the legislators have not wanted to do so.  They seem to prefer a system where PERS members the final say on any PERS changes.

Dan Re

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Oregon Supreme Court Denies Petition For Review

On July 25, 2013, the Oregon Supreme Court denied my petition for review of the Court of Appeals case that refused to have non-PERS judges decide Re v. PERS.  The Supreme Court’s decision means that under current Oregon law all PERS lawsuits must be decided by judges who are PERS members, even when those judges have a substantial financial interest in the outcome of the case.

Unfortunately, the Supreme Court did not explain why I was not entitled to have my case decided by judges who were impartial but the court was not required to give any explanation.

This matter, however, is not over.  I will continue in my efforts to restore fundamental fairness to PERS lawsuits and I will not stop until that issue is finally decided by judges who are not PERS members.

Dan Re

 

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UPDATE: DANIEL C. RE v. PERS

In April, 2013, the Oregon Court of Appeals denied my request to have my lawsuit, Daniel C. Re v. PERS decided by judges who are not PERS members.  The Court held that the rule of necessity applied to this case and that the elected judges of the Court of Appeals, all of whom were PERS members and whose own retirement benefits depended on the outcome of the case, had to decide the case.  The Court of Appeals made this ruling by deferring to prior Oregon Supreme Court decisions, even though the laws that applied to the Supreme Court were different that the laws that applied to the Court of Appeals.

Under the rule of necessity, judges with a conflict of interest must decide a case despite having a conflict of interest that would disqualify them, if it is impossible to appoint judges to decide the case who do not have a conflict of interest.  In this case, there is a specific statute, ORS 2.570(3), that allows the Oregon Supreme Court to appoint temporary judges to the Court of Appeals, if all of the elected Court of Appeals are disqualified to decide the case.  Since all of the elected Court of Appeals judges are PERS members, they all have a disqualifying conflict of interest.  The Court recognized this fact in its opinion but failed to apply ORS 2.570(3).

It appears to me that the Court of Appeals felt that since the Oregon Supreme Court had first ruled that the rule of necessity applied in PERS cases, only the Supreme Court could review that issue.  Therefore, I will ask Oregon Supreme Court to review the Court of Appeals decision.  The Supreme Court, however, is not required to grant this request.

If the Supreme Court grants the request it will give the Court, for the first time, the opportunity to review the applicability of the rule of necessity to PERS cases.  And, hopefully, it will result in a detailed explanation from the Supreme Court as to why or why not the rule of necessity applies to the Court of Appeals when PERS cases are decided.

If, however, the Court denies my request,  it will mean that the Supreme Court will not provide an explanation as to why the rule of necessity applies to PERS cases in the Court of Appeals.  In that case, I will examine all other options available to me to have this issue determined by judges who are not PERS members and whose own retirement benefits do not depend on the outcome of the case.

Dan Re

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HB 2451 – It Requires Fairness For All

HB 2451, introduced in the Oregon legislature on January 14, 2013, will provide all Oregonians with greater protection than currently exists, the right to have every Oregon lawsuit presided over by an impartial judge or panel of judges.  The right to impartial judges who do not have a financial stake in the outcome of the case they decide has always been one of our greatest rights.  Both as Oregonians and as citizens of the United States.  The Declaration of Independence sets forth this specific grievance against the King: He has made Judges dependent on his Will alone, for the tenure of their offices,
and the amount and payment of their salaries.

While, impartial judges do decide most Oregon lawsuits, they do not decide PERS cases.  All elected Oregon judges are PERS members the minute they take office under a law  that took effect January 1, 1984, thirty-eight years after PERS was created.   During the first thirty-eight years of PERS, Oregon elected judges had their own, independent retirement plan.  So, when PERS cases were decided, no judge with a financial stake in the outcome of a PERS case would decide the case.  When the law forcing judges into PERS was passed, eighty-four of Oregon’s ninety legislators were PERS members.

The law that forced Oregon judges into PERS did not say that judges who were PERS members to decide PERS cases.  That was stated by Oregon judges who were PERS members, despite the fact that Oregon had temporary judges who were not all PERS members and, arguably, could have decided PERS cases.  That argument was never made to the Oregon PERS judges who decided PERS cases and the judges did not address that possibility on their own.  Oregon judges who were PERS members simply held that they were the only ones authorized to decide PERS cases due to their PERS membership.

As a result of the law making all elected Oregon judges PERS members and the subsequent court decisions, all PERS cases are now decided by judges who are PERS members.  That law resulted in an unprecedented termination of a fundamental right that all Oregonians previously had, the right to impartial judges in PERS cases.  PERS lawsuits decided by PERS judges cost the people of Oregon billions of dollars every year.  Those dollars could have gone for public services that would benefit all Oregonians but, instead, just go exclusively to PERS members.

If you do not like the fact that all PERS cases are now decided by PERS judges, let your legislators know about HB 2451.  Ask those legislators to tell you if they believe it is fair for PERS members to have an unfair advantage in EVERY PERS lawsuit.  If they do favor giving PERS an unfair advantage, ask them to explain to why.  If they do not think that PERS members should have an unfair advantage and that everyone should be treated fairly, let them know about HB 2451.

HB 2451 takes no legal rights from anyone.  It makes sure that the fundamental legal rights of all Oregonians, upon which our system of justice is base, are respected and enforced for all.

Dan Re

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The Tale Of Two Bill: SB 369 And HB 2451

Of the many bill that have been introduced into the 2013 Oregon legislature, two bills deserve following, SB 369 and HB 2451.  Those bills will show how the legislature intends to deal with PERS in the 2013 session.

SB 369, was introduced by Sen Alan Bates, a PERS member and staunch PERS supporter.  This bill would change Oregon law to make the amount of retirement benefits paid to PERS members secret information that cannot be disclosed to the people of Oregon who have been obligated by PERS legislators to pay the retirement benefits.  SB 369, if passed, would be a statement by the legislature, most of whom are PERS members, that it wants to return to a time of PERS secrecy, where the people of Oregon not only did not know how much they were being forced to pay to retired PERS members, they were not even allowed to know if their elected representatives were PERS members.  For Sen. Bates and his fellow PERS members, that is what they want Oregon to return to.

SB 369 received a first reading on January 14, 2013 and was referred to the Senate Judiciary Committee on January 22, 2013.  The members of the Senate Judiciary Committee are: Floyd Prozanski (D), Chair; Betsy Close (R), Vice-Chair; Jackie Dingfelder (D); Jeff Kruse (R); and,  Arnie Roblan (D) .

HB 2451, was introduced by Rep. Jason Conger, who is not a PERS members.  This bill would protect the right of all Oregonians  to have all lawsuit, including PERS lawsuits, decided by judges who are impartial.  Today, PERS members have a fundamentally unfair advantage in all PERS lawsuits.  Every PERS lawsuit must be decided by a judge who is a PERS member.  Such an unfair advantage in legal proceedings would not be tolerated in any other situation in Oregon but since most legislators are PERS members and all elected judges are PERS members, this unfair advantage is not only tolerated in PERS cases, it is vigorously protected.  HB 2451 would end this unfair advantage and would treat everyone in Oregon equally.

HB 2451 received its first reading on January 14, 2013 and was referred to the the House Judiciary Committee on January 22, 2013.  The members of the House Judiciary Committee are: Jeff Barker (D), Chair; Chris Garrett (D), Vice-Chair; Wayne Krieger (R), Vice-Chair; Brent Barton (D); Kevin Cameron (R); Wally Hicks (R); Andy Olson (R); Carolyn Tomei (D); and, Jennifer Williamson (D).

I will keep you updated on these two bill.  If you are interested in them, contact your legislators and let them know how you feel about the bills.

Dan Re

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The Legislators, The Judges and PERS Reform

There is a lot of discussion these days about PERS reform legislation by the 2013 legislature.  The legislators, however, point out that their ability to reform PERS is subject to approval of the Oregon Supreme Court.  Today, all of the judges of the Oregon Supreme Court are PERS members.  They are PERS members because the legislators made them join PERS, automatically, starting January 1, 1984.  It just so happens, that most legislators are also PERS members today and when the judges were forced into PERS eighty-four of the ninety legislators were PERS members.

The judges’ PERS interest predisposes them to oppose any PERS reform that would impact their personal PERS benefits and judges get many of the same benefits that all Tier One and Tier Two PERS members get.  They have a substantial conflict of interest and they have not allowed significant PERS reforms made by the people of Oregon, in 1994, nor by the legislature in 2005 to stand.  The PERS legislators also have a financial conflict of interest and are predisposed to oppose PERS reform.  Having the judges in PERS is perfect for the PERS legislators.  They can propose PERS reform until the cows come home and then they can blame the lack of PERS reform on the judges.  The PERS legislators know that any reforms they make will likely never be upheld by the judges.

The real problem with the legislators’ concern about the judges is that the judges are PERS members only because the PERS legislators made them PERS members and because the legislature allows the PERS judges to decide PERS cases.  The Oregon Supreme Court has no constitutional right to decide PERS cases and it can do so only if the legislature or the people permit them to do so.  In the public debate regarding the Supreme Court’s power over PERS reforms, no public figure has ever questioned the right of PERS judges to decide PERS cases.  That is because most of those public figures are PERS members and the last thing they want to see is PERS reform.

The Oregon legislature has not even considered requiring PERS cases to be decided by impartial, non-PERS judges.  HB 2451, however, gives them the opportunity to do that.  If you want impartial judges to decide PERS cases and to restore fundamental fairness to all Oregonians look at HB 2451 and tell your legislators to do the same thing.

Dan Re

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