Moro v. State of Oregon

No. 1 January 16, 2014 657
IN THE SUPREME COURT OF THE
STATE OF OREGON
Everice MORO;
Terri Domenigoni; Charles Custer; John Hawkins;
Michael Arken; Eugene Ditter; John O’Kief;
Michael Smith; Lane Johnson; Greg Clouser;
Brandon Silence; Alison Vickery; and Jin Voek,
Petitioners,
v.
STATE OF OREGON;
State of Oregon,
by and through the Department of Corrections;
Linn County; City of Portland;
City of Salem; Tualatin Valley Fire & Rescue;
Estacada School District; Oregon City School District;
Ontario School District; Beaverton School District;
West Linn School District; Bend School District;
and Public Employees Retirement Board,
Respondents,
and
LEAGUE OF OREGON CITIES;
Oregon School Boards Association;
Central Oregon Irrigation District;
and Association of Oregon Counties,
Intervenors.
S061452 (Control)
Wayne Stanley JONES,
Petitioner,
v.
PUBLIC EMPLOYEES RETIREMENT BOARD;
Ellen Rosenblum, Attorney General;
and John A. Kitzhaber, Governor,
Respondents.
S061431
658 Moro v. State of Oregon
Michael D. REYNOLDS,
Petitioner,
v.
PUBLIC EMPLOYEES RETIREMENT BOARD,
State of Oregon; and John A. Kitzhaber,
Governor, State of Oregon,
Respondents.
S061454
George A. RIEMER,
Petitioner,
v.
STATE OF OREGON;
Oregon Governor John Kitzhaber;
Oregon Attorney General Ellen Rosenblum;
Oregon Public Employees Retirement Board;
and Oregon Public Employees Retirement System,
Respondents.
S061475
George A. RIEMER,
Petitioner,
v.
STATE OF OREGON,
Oregon Governor John Kitzhaber,
Oregon Attorney General Ellen Rosenblum,
Public Employees Retirement Board,
and Public Employees Retirement System,
Respondents.
S061860
On Intervenor Central Oregon Irrigation District’s Motion
to Disqualify Special Master and Motion to Disqualify
Justices of the Supreme Court.
Kristian Roggendorf, Lake Oswego, filed the motions
and combined reply on behalf of Intervenor Central Oregon
Irrigation District.
Cite as 354 Or 657 (2014) 659
Anna M. Joyce, Solicitor General, Salem, filed the
response on behalf of Respondents State of Oregon, Public
Employees Retirement Board, Ellen Rosenblum, Public
Employees Retirement System and John A. Kitzhaber.
With her on the brief were Keith L. Kutler and Matthew J.
Merritt, Assistant Attorneys General.
W. Michael Gillette, Portland, filed the notice joining
in the State of Oregon’s response on behalf of Intervenor
League of Oregon Cities.
Harry Auerbach, Chief Deputy City Attorney, Portland,
filed the response on behalf of Respondent City of Portland.
Gregory A. Hartman, Portland, filed the response on
behalf of the Moro Petitioners, Petitioner Riemer, Petitioner
Reynolds, and Petitioner Jones.
Before Balmer, Chief Justice, Kistler, Walters, Linder,
Brewer, and Baldwin, Justices.*
BALMER, C. J.
Intervenor Central Oregon Irrigation District’s motions
to disqualify the members of this court and the Special
Master are denied.
______________
* Landau, J., did not participate in the consideration or decision of these
motions.
660 Moro v. State of Oregon
Current and former public employees filed petitions for direct judicial review
of the 2013 statutory amendments to the Public Employees Retirement System
(PERS). Central Oregon Irrigation District, a public employer, then filed a motion
to disqualify the sitting judges of the Oregon Supreme Court from hearing the
cases and filed a separate motion to disqualify the circuit judge appointed by
the Supreme Court to serve as a special master for purposes of conducting evi-
dentiary proceedings and preparing recommended findings of fact. Held: (1)
The statutes and constitutional provisions regarding the appointment of pro
tempore judges to the Oregon Supreme Court permit the appointment only of
persons who are elected or appointed judges (or who were elected or appointed
Supreme Court judges and are now retired), all of whom are members of PERS
who share the same potentially disqualifying economic interest as the sitting
judges of the Oregon Supreme Court; (2) because disqualification of the sitting
judges of the Oregon Supreme Court would leave petitioners without a tribunal to
decide their claims, and in light of the legislature’s express grant of jurisdiction
to the Supreme Court to decide challenges to the 2013 PERS legislation, the rule
of necessity applies and is not a denial of due process; (3) the members of the
Supreme Court therefore are not disqualified from deciding these cases because
of any interest in the proceeding under ORS 14.210(1)(a) or Rule 3.10(A) of the
Oregon Code of Judicial Conduct; and (4) for purposes of the opinion, the same
analysis regarding disqualification applies to the special master as to members
of the Supreme Court.
Intervenor Central Oregon Irrigation District’s motions to disqualify the
members of this court and the Special Master are denied.
Cite as 354 Or 657 (2014) 661
BALMER, C. J.
These cases challenge the constitutionality of Senate
Bill (SB) 822, passed by the 2013 Legislative Assembly
during its regular session, and SB 861, passed during a spe-
cial session in October 2013, both of which change certain
statutory provisions of the Public Employees Retirement
System (PERS) and, in doing so, affect the retirement ben-
efits of some current and former public employees. Central
Oregon Irrigation District (the District), a public employer
and an intervenor in these proceedings, filed a motion to
disqualify the sitting judges of the Oregon Supreme Court
from hearing these cases. The District also filed a separate
motion to disqualify the circuit judge appointed by this court
to serve as a special master for purposes of conducting evi-
dentiary proceedings and preparing recommended findings
of fact. For the reasons that follow, we deny both motions.
The District’s arguments in support of its motions
to disqualify are based on statutory provisions, the Oregon
Code of Judicial Conduct (Code), and constitutional princi-
ples. The District contends that participation by the judges
of this court and the special master would violate ORS
14.210 and former Judicial Rule (JR) 2-106(A)(3) (2002) of
the Code.1 ORS 14.275 provides in part that a party “may
move to disqualify a judge of the Supreme Court * * * for one
or more of the grounds specified in ORS 14.210, or upon the
ground that the judge’s participation in the cause would vio-
late the Oregon Code of Judicial Conduct.” ORS 14.210(1)(a)
in turn provides in part that a “judge shall not act as judge
if the judge is a party to or directly interested in the action,
suit or proceeding.” The substance of former JR 2-106(A)(3)
(2002) now appears in Rule 3.10(A)(2)(c) and Rule 3.10(A)(3).
That rule requires a judge to “disqualify himself or her-
self in any proceeding in which a reasonable person would
question the judge’s impartiality, including [when the judge]
*  * has an interest that could be substantially affected by
*
the proceeding; * * * [or when] [t]he judge knows that he or
1
This court approved a comprehensive revision of the Code, effective
December 1, 2013. The substance of the disqualification provision formerly set
out in JR 2-106(A)(3) is now contained in Rule 3.10(A) of the Code, and the dis-
qualification rule was amended in other respects, as discussed below.
662 Moro v. State of Oregon
she *  * has an economic interest in the subject matter in
*
controversy *  *.” The District argues that the members of
*
the court have a direct and substantial economic interest in
the outcome of these consolidated cases because they cur-
rently are members of the PERS system and their future
retirement benefits may be affected by the outcome of this
litigation.2 The District further asserts that it would violate
the Due Process Clause of the Fourteenth Amendment to
the United States Constitution for judges who have such an
interest to decide these cases.
The District argues that the special master shares
the disqualifying characteristic of the members of this court
because, as a judge, he is a member of PERS and, once
appointed special master, he “in fact becomes a ‘member’
of this court, albeit temporarily.” Although we do not nec-
essarily agree with the District’s assertion that the special
master “becomes” a member of this court, we acknowledge
that the circuit court judge appointed as a special master is
a member of PERS, and we will assume for purposes of this
opinion that the same analysis regarding disqualification
applies to him as to members of this court.
Other parties have responded to the District’s
motions, arguing variously that any economic interest of the
members of this court in the outcome of this case is specula-
tive and perhaps de minimis; that the legislature’s decision
to confer jurisdiction on this court to decide challenges to
SB 822 and SB 861 trumps any conflicting statutes or rules;
that the “rule of necessity” permits this court to decide these
cases, notwithstanding any potential disqualification; and
2
State court judges become PERS members on the day that they take office.
ORS 238.505(1). The District notes that some members of the court are members
of PERS both because they are state judges and because they previously were
state employees who worked for the Department of Justice. Although there are
substantial differences in the operation of PERS and the calculation of benefits
as it relates to judge members of PERS and non-judge members of PERS, the
District does not contend that the changes made by SB 822 and SB 861 apply dif-
ferently to judge and non-judge PERS members and draws no distinction based
on type of PERS membership in the grounds that it asserts require disqualifica-
tion. Accordingly, for purposes of deciding these motions, we do not distinguish
between the “interest” in these proceedings that members of this court may have
as judge members of PERS and the interest they may have as non-judge members
of PERS.
Cite as 354 Or 657 (2014) 663
that this court’s adjudication of the challenges to SB 822
does not violate any due process right of the District.
Before turning to the substance of the District’s
motions, we note that the initial petitions filed in these cases
challenged SB 822, a bill passed during the 2013 legisla-
tive session that modifies the cost-of-living adjustment pro-
visions of the PERS statutes and changes a provision that
relates to taxes paid by out-of-state PERS retirees. During
a special session in October 2013, the legislature passed two
additional bills that make changes to PERS. One of the new
bills, SB 861, further modifies the cost-of-living adjustment
provisions that had been addressed in SB 822. The other
bill, SB 862, makes several changes to the PERS statutes,
including: limiting one component of the “final average sal-
ary” that is used to calculate retirement benefits for some
PERS retirees; allowing certain creditors to execute on cer-
tain PERS benefits of convicted felons; and modifying the
PERS options available to legislators. Both SB 861 and SB
862 contain judicial review provisions identical to those
included in SB 822. More specifically, they provide for legal
challenges to the measures to be filed directly with this
court, for public employers to intervene, and for this court to
appoint a special master to take evidence and prepare rec-
ommended findings of fact. SB 861, § 11; SB 862, § 15. One
petitioner filed a new petition and the other petitioners filed
amended petitions raising the same challenges to SB 861
that they had raised to SB 822. This court issued an order
consolidating those petitions with the pending challenges to
SB 822 for purposes of decision. No party challenges SB 862,
and we do not discuss that law further.
Because the potential grounds for disqualification
that the District raises as to SB 822 also arise under SB
861, we will treat the District’s motion as applying to this
court’s adjudication of challenges to that law as well. We will
refer to the two laws, collectively, as “the 2013 PERS legisla-
tion,” except when separately discussing one or the other.
As noted, certain parties that have responded to
the District’s motions argue that any interest that judges on
this court have in the outcome of these cases is speculative
and de minimis. They point out that the provisions of SB 822
664 Moro v. State of Oregon
relate to cost-of-living adjustments and out-of-state taxes for
persons who are PERS retirees and that the members of this
court are not now PERS retirees and, for a variety of rea-
sons, might never become PERS retirees. Additionally, they
note that the cost of living in the future may fall, rather than
rise, rendering the prospect of future cost-of-living increases
for PERS beneficiaries—and the effect of the 2013 PERS
legislation on those possible increases—speculative. On the
other hand, as the District argues, the value of the potential
PERS benefits to active members of PERS, including mem-
bers of this court, obviously is affected by changes to the
cost-of-living adjustment provisions of the PERS statutes.
For purposes of this opinion, however, we need not resolve
that issue. We will assume that the potential, future impact
on members of this court of the changes to PERS made by
the 2013 PERS legislation—although uncertain and perhaps
speculative at this time—constitutes the kind of “interest”
and “economic interest” referred to in ORS 14.210 and Rule
3.10(A)(2)(c) and Rule 3.10(A)(3) of the Code.
We turn to the District’s argument that the judges
of this court should be disqualified because each member
of the court is “directly interested” in this proceeding, and,
therefore, under ORS 14.210(1)(a), “shall not act as judge”
in the proceeding. That argument is unavailing, because
the legislature has specifically conferred jurisdiction on
this court to decide these very cases. SB 822, section 19(1),
provides:
“Jurisdiction is conferred on the Supreme Court to deter-
mine in the manner provided by this section whether this
2013 Act breaches any contract between members of the
Public Employees Retirement System and their employers,
violates any constitutional provision, including but not
limited to impairment of contract rights of members of the
Public Employees Retirement System under Article I, sec-
tion 21, of the Oregon Constitution, or Article I, section 10,
clause 1, of the United States Constitution, or is invalid for
any other reason.”
(Emphases added.) See also SB 861, § 11(1) (identical provi-
sion). Furthermore, SB 822, section 19(6), and the identical
provision in SB 861, section 11(6), provide:
Cite as 354 Or 657 (2014) 665
“In the event the Supreme Court determines that there
are factual issues in the petition, the Supreme Court may
appoint a special master to hear evidence and to prepare
recommended findings of fact.”
When the legislature enacted those judicial review
provisions, it did so knowing that the members of this court
are PERS members and that this court had previously
decided that its members were not barred from ruling on
challenges to legislative changes in PERS on that basis. The
judicial review provisions of the 2013 PERS legislation are
virtually identical to those that the legislature enacted in
2003 for review of the 2003 PERS legislation that was at
issue in Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005).
See Or Laws 2003, ch 625, §§ 17-17a (judicial review provi-
sions for challenges to PERS legislation). Pursuant to the
express grant of jurisdiction in the 2003 legislation, this
court in Strunk appointed a sitting judge as a special mas-
ter to hear evidence and prepare recommended findings of
fact, and the court proceeded to decide the cases challenging
the changes in PERS made by the 2003 legislation. As to the
potential conflict of interest on the part of judges who are
PERS members, this court stated in Strunk:
“This is not the first instance in which the legislature
has conferred jurisdiction specifically on this court to deter-
mine the validity of legislative or constitutional changes
to PERS. In those prior instances, the ‘rule of necessity’
required the court to adjudicate the claims. See Oregon
State Police Officers’ Assn. v. State of Oregon, 323 Or 356,
361 n 3, 918 P2d 765 (1996); Hughes v. State of Oregon,
314 Or 1, 5 n 2, 838 P2d 1018 (1992) (both discussing that
doctrine). To the extent that the justices of this court either
have, or arguably could be said to have, a financial stake
in the outcome of this litigation, we likewise conclude that
the rule of necessity requires that we decide the contrac-
tual and constitutional challenges that the legislature has
directed us to adjudicate.”
338 Or at 151 n 5.
In interpreting statutes, this court presumes that
the legislature is aware of existing law and this court’s
interpretation of that law. See State v. Stark, 354 Or 1, 10,
666 Moro v. State of Oregon
307 P3d 418 (2013) (court presumes that Oregon legislature
aware of existing law on subject); State v. Clevenger, 297 Or
234, 244, 683 P2d 1360 (1984) (noting Oregon legislature
is presumed to be aware of prior decisions of the Oregon
Supreme Court). In analyzing the legislature’s grant of spe-
cific and express authority to this court in the 2013 PERS
legislation, we again presume that the legislature was
aware of the existing statutes, including the statutes that
make members of this court members of PERS. We also pre-
sume that the legislature was aware of this court’s decision
in Strunk interpreting judicial review provisions virtually
identical to those in the 2013 PERS legislation. In Strunk,
this court held that those judicial review provisions directed
the members of this court to decide the challenges to the
2003 PERS legislation despite any potential financial stake
or other “interest” that might otherwise have disqualified
them from doing so. When the legislature adopted essen-
tially identical review provisions as part of the 2013 PERS
legislation, it presumably did so with the understanding
that this court would interpret those provisions in the same
way that it did the provisions in the 2003 PERS legislation,
viz., that the members of this court could adjudicate those
cases notwithstanding the potential economic interest that
they might have in the outcome.3 Accordingly, we conclude
that ORS 14.210(1)(a), which provides that a judge who is
“directly interested” in a case shall not act as a judge in that
case, does not disqualify judges of this court from deciding
these cases as a result of their membership in PERS.
The District next argues that the members of this
court should be disqualified because their participation in
these cases would violate the Code. The District’s motion
refers to former JR 2-106(A)(3) (2002), which provided for
disqualification when a judge “has a financial interest in
3
That conclusion also responds to the District’s argument that the legisla-
ture’s reference in the judicial review provisions of the 2013 PERS legislation to
the “Supreme Court,” refers to the institution in the abstract, and not to the duly
elected (or appointed) and sitting members of the court. Nothing in the context
of the 2013 PERS legislation or in any legislative history to which we have been
directed indicates that it would be consistent with the legislature’s intent to have
challenges to SB 822 and SB 861 decided by a reconstituted “Supreme Court”
consisting entirely of members of the bar who were never elected to a judicial
position or appointed by the Governor to fill a judicial vacancy.
Cite as 354 Or 657 (2014) 667
the subject matter in controversy” or “has any other inter-
est that could be substantially affected by the outcome of
the proceeding.” As noted above, effective December 1, 2013,
this court adopted a revised Code. The substance of former
JR 2-106(A)(3) (2002) now appears in Rule 3.10, which pro-
vides that a judge shall disqualify himself or herself if he or
she has “an interest that could be substantially affected by
the proceeding,” Rule 3.10(A)(2)(c), or “an economic interest
in the subject matter in controversy.” Rule 3.10(A)(3).
As discussed above, Rule 3.10 of the Code now
includes an express exception to otherwise applicable dis-
qualification rules when the rule of necessity applies: “The
disqualification requirement under subsection (A) of this
Rule does not apply if the rule of necessity applies.” Rule
3.10(B). As we discuss in greater detail below, under the
“rule of necessity,” if the only judges authorized by law to
decide a case all have an interest in the outcome of the case,
that interest is not disqualifying because judges have “the
absolute duty” to “hear and decide cases within their juris-
diction.” United States v. Will, 449 U.S. 200, 215, 101 S. Ct. 471,
66 L. Ed. 2d 392 (1980).
The rule of necessity has been applied consistently
by federal and Oregon courts. See Evans v. Gore, 253 U.S.
245, 247-48, 40 S. Ct. 550, 64 L. Ed. 887 (1920) (court must
decide case involving taxation of compensation of federal
judges, notwithstanding financial interest of judges in out-
come of case), overruled on other grounds by United States
v. Hatter, 532 U.S. 557, 567, 121 S. Ct. 1782, 149 L. Ed. 2d 820
(2001); Woodward v. Pearson, 165 Or 40, 58, 103 P2d 737
(1940) (court members’ interest as parties to contract with
publishing company for publication of codification of state
laws did not disqualify them from adjudicating constitution-
ality of statute authorizing publication). In Woodward, this
court analogized the allegedly disqualifying interest there
to litigation involving taxation:
“Our interest as taxpayers attends in every case where a fel-
low taxpayer seeks to enjoin the payment of money derived
from taxation; but by reason of the fact that no tribunal
is available unattended by the same disqualifying interest
wherein the issues of such a case may be determined, this
668 Moro v. State of Oregon
court and other courts composed of tax-paying judges have
been compelled to hear and decide such issues.”
165 Or at 58. Woodward thus indicates that, when no alter-
native tribunal is available, otherwise disqualified judges
may hear the case. This court has applied the rule of neces-
sity in cases like this one, where judges have had an other-
wise disqualifying interest and no law authorizes judges
without such an interest to decide the case. Strunk, 338 Or
at 151 n 5 (citing rule of necessity and earlier cases applying
it). Here, as noted, we assume that, as members of PERS,
the judges of this court have an interest and an “economic
interest” in the outcome of this case as those terms are used
in the Code. However, the only court authorized by the 2013
PERS legislation to decide this case is “the Supreme Court.”
Accordingly, for the reasons we discuss below, the rule of
necessity applies, and Rule 3.10 of the Code does not bar this
court from deciding the case.4
We turn to our analysis of the rule of necessity as it
applies in this case. In Strunk, the court followed two earlier
decisions and held that the “rule of necessity requires that
we decide the contractual and constitutional challenges that
the legislature has directed us to adjudicate.” 338 Or at 151
n 5. Here, the District does not argue that the rule of neces-
sity should be abandoned. Rather, the District contends
that the rule does not apply to this case, because it is pos-
sible to establish a “Supreme Court” of judges who are not
PERS members, by means of a two-step process of appoint-
ing pro tempore judges from members in good standing of
the Oregon bar who are not judges. Our prior cases do not
address the District’s argument, and we take this occasion
to do so.
The District first asserts that this court could
appoint members of the bar who are not PERS members as
pro tempore circuit court judges under ORS 1.635. Then, the
District continues, those “circuit judges” could be appointed
4
For that reason, we need not decide whether this court could impose restric-
tions on its members through the Code different from those imposed by the leg-
islature by statute. The Code provisions and the statutes that are cited in the
text and that are the basis for the District’s motion all relate to the “financial”
interest of the members of this court in the outcome of the proceeding and provide
essentially the same disqualification standard.
Cite as 354 Or 657 (2014) 669
under ORS 1.600 as judges pro tempore of the Oregon
Supreme Court. ORS 1.600 provides that, once appointed
as a pro tempore judge of the Supreme Court (or Court of
Appeals), the person so appointed “has all the judicial powers
and duties, while so serving, of a regularly elected and qual-
ified judge of the court to which the judge is appointed.” In
that way, the District argues, a “Supreme Court” could be
created consisting of individual members of the bar who
would have “all the judicial powers and duties * * * of a reg-
ularly elected and qualified judge”—but not including any
person elected as a judge under Article VII (Amended),
section 1, of the Oregon Constitution or appointed by the
Governor to fill a judicial vacancy under Article V, section
16, of the Oregon Constitution. That group of individuals,
according to the District, none of whom would be PERS
members, could decide these cases. It would be a court of pro
tempore circuit court judges who had then been appointed
pro tempore Supreme Court judges.
The statutes providing for the appointment of pro
tempore judges to this court, however, do not permit the
process that the District suggests. First, ORS 2.111(5) pro-
vides, in part: “When sitting en banc, the [supreme] court
may include not more than two judges pro tempore of the
Supreme Court.” The District states that it is not suggesting
that this court sit in a “department” of between three and
five judges, as it may under ORS 2.111(2); the alternative to
sitting in a department is sitting “all together,” ORS 2.111(1),
usually referred to as sitting en banc.5 Under the plain text
of ORS 2.111(5), however, no more than two judges of the
court when sitting en banc, as this court ordinarily does,
may be judges pro tempore. Thus, even if it were possible to
appoint members of the bar who are not PERS members to
sit on this court—which it is not, as we discuss below—no
more than two such persons could be appointed.
Additionally, the District’s argument that a “Supreme
Court” sitting en banc could be comprised solely of indi-
vidual members of the bar who are appointed to serve as
5
When sitting en banc, “the presence of a majority of all the judges of the
Supreme Court is necessary for the transaction of any business[.]” ORS 2.100.
Thus, except when sitting in departments, four judges are required to transact
business.
670 Moro v. State of Oregon
pro tempore circuit court judges is inconsistent with ORS
1.600(1). ORS 1.600(1) provides:
“The Supreme Court may appoint any regularly elected
and qualified, or appointed and qualified, judge of the Court
of Appeals, Oregon Tax Court or circuit court to serve as
judge pro tempore of the Supreme Court, or any regularly
elected and qualified, or appointed and qualified, judge of
the Supreme Court, Oregon Tax Court or circuit court to
serve as judge pro tempore of the Court of Appeals, when-
ever the Supreme Court determines that the appointment
is reasonably necessary and will promote the more efficient
administration of justice.”
(Emphasis added.) As noted previously, the District asserts
that a member of the bar could first be appointed a pro tem-
pore judge of the circuit court and then be appointed as a
pro tempore judge of the Oregon Supreme Court. This court
frequently appoints experienced members of the bar to
serve as pro tempore judges of the circuit court. However,
ORS 1.600(1) does not authorize pro tempore circuit court
judges to be appointed as pro tempore judges of the Supreme
Court. Rather, it explicitly limits the persons who may be so
appointed to “regularly elected and qualified, or appointed
and qualified” Court of Appeals, Tax Court, or circuit court
judges. Pro tempore circuit court judges are not “elected.”
Although they are “appointed” by this court, see ORS 1.635,
given the context of the term “appointed” in ORS 1.600(1),
it plainly refers to an appointment by the Governor to fill a
judicial vacancy under Article V, section 16; it does not refer
to a pro tempore appointment to the circuit court by this
court.
The District’s position would require us to insert
into ORS 1.600(1) the terms “or pro tempore circuit court
judge” as a category of persons who may be appointed to
serve as a judge pro tempore of the Oregon Supreme Court.
We may not extend the reach of ORS 1.600(1) beyond what
the terms of that statute provide. In our view, the only rea-
sonable reading of the statutory terms in context is that
they authorize the Supreme Court to appoint only regularly
elected judges of the lower courts—or judges appointed by
the Governor to fill a judicial vacancy—to serve as pro tem-
pore judges of the Supreme Court.
Cite as 354 Or 657 (2014) 671
Our conclusion, as a matter of statutory interpreta-
tion, that only regularly elected or appointed sitting judges
may be appointed as pro tempore judges of the Oregon
Supreme Court, is consistent with Article VII (Amended),
section 2a, of the Oregon Constitution. Article VII (Amended),
section 2a, addresses the temporary appointment and
assignment of judges in the following terms:
“The Legislative Assembly or the people may by law
empower the Supreme Court to:
“(1)  Appoint retired judges of the Supreme Court or
judges of courts inferior to the Supreme Court as tempo-
rary members of the Supreme Court.
“(2)  Appoint members of the bar as judges pro tempore
of courts inferior to the Supreme Court.
“(3)  Assign judges of courts inferior to the Supreme
Court to serve temporarily outside the district for which
they were elected.
“A judge or member of the bar so appointed or assigned
shall while serving have all the judicial powers and duties
of a regularly elected judge of the court to which he is
assigned or appointed.”
That provision differentiates between persons who can be
appointed pro tempore members of the Supreme Court (sub-
section 1) and persons who can be appointed pro tempore
members of courts inferior to the Supreme Court (subsec-
tion 2). The text of the provision makes it plain that the con-
stitution permits (if there is statutory authorization) only
judges (retired Supreme Court judges or current judges of
inferior courts) to be appointed pro tempore members of the
Supreme Court. And the provision permits members of the
bar who are not judges to be appointed pro tempore mem-
bers of only courts inferior to the Supreme Court.
The District’s proposal that this court appoint non-
judge members of the bar first to be pro tempore circuit
court judges and then appoint them as pro tempore mem-
bers of the Oregon Supreme Court conflicts with the dis-
tinction drawn by the provisions of Article VII (Amended),
section 2a. The necessary, negative implication that flows
from the express terms of Article VII (Amended), section 2a,
672 Moro v. State of Oregon
is that non-judge members of the bar cannot be appointed as
pro tempore members of the Supreme Court. The distinction
drawn expressly by the provisions of Article VII (Amended),
section 2a, of the Oregon Constitution cannot be evaded by
the artificial construct of one pro tempore appointment over-
laid on another pro tempore appointment. Consequently, we
conclude that the District’s proposal also is precluded by
Article VII (Amended), section 2a.
For the reasons discussed above, we hold that the
statutes and constitutional provisions regarding the appoint-
ment of pro tempore judges to the Oregon Supreme Court
permit the appointment only of persons who are elected or
appointed judges (or who were elected or appointed Supreme
Court judges and are now retired). All such persons are
members of the PERS system and therefore share what we
have assumed for purposes of this case is an “interest” or
“economic interest” in the outcome of this proceeding, as
those terms are used in Rule 3.10(A) of the Code. Because all
judges who could decide these cases share the same poten-
tially disqualifying economic interest, the rule of necessity
applies.6 Accordingly, under Rule 3.10(B), the rule requiring
disqualification when a judge has an interest or economic
interest in the proceeding “does not apply.”
The discussion above also resolves the District’s con-
stitutional argument. The District argues that even if the
statutes and judicial rules permit the members of this court
to decide these cases, the Due Process Clause of the United
States Constitution requires that the members of the court
recuse themselves. In particular, the District cites Aetna
Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L
Ed 2d 823 (1986), for the proposition that it is a due process
violation for a judge to decide a case in which the judge has
a financial interest. Although the United States Supreme
6
The District’s motion argues only that the members of this court are dis-
qualified from deciding these cases because they are members of PERS, and the
opinion addresses only that argument. There are, of course, statutes and pro-
visions of the Code that may disqualify a particular member of the court from
participating in a case for reasons specific to that member. The rule of necessity
does not apply to the individual judge in that situation, because other members
of the court do not share the same basis for disqualification. In this case, Justice
Landau has recused himself because of a disqualification unrelated to his mem-
bership in PERS.
Cite as 354 Or 657 (2014) 673
Court has held that it violates the Due Process Clause to
have a person’s case heard by a judge who “has a direct,
personal, substantial, pecuniary interest in reaching a con-
clusion against him in his case,” if no judge without such an
interest is authorized to hear the case, due process concerns
give way to the “rule of necessity.” Aetna, 475 U.S. at 821-22
(internal quotation marks omitted); see also id. at 825 (not-
ing that disqualification of every judge in the state might
implicate “rule of necessity,” meaning none of the judges
would be disqualified despite possible pecuniary interest).
As the United States Supreme Court stated in Will:
“The Rule of Necessity had its genesis at least five and
a half centuries ago. Its earliest recorded invocation was in
1430, when it was held that the Chancellor of Oxford could
act as judge of a case in which he was a party when there
was no provision for appointment of another judge. Y. B.
Hil. 8 Hen. VI, f. 19, pl. 6. Early cases in this country con-
firmed the vitality of the Rule.”
449 U.S. at 213-14 (footnote omitted).7 In Will, the Court
addressed whether federal court judges should be disqual-
ified from hearing a challenge to the constitutional valid-
ity of statutes that reduced the compensation of the judges.
The Court determined that the rule of necessity applied
and that it prevailed over claims that the judges should be
disqualified.
When the rule of necessity applies, the due process
concerns raised by the District give way to the fundamental
need for a tribunal that can address petitioners’ claims. As
one lower federal court recently explained:
“In Will, the Supreme Court applied the time-honored ‘Rule
of Necessity’ because if every potentially conflicted judge
were disqualified, then plaintiffs would be left without a tri-
bunal to address their claims. The Rule of Necessity states
7
In Will, the Court cited English authorities from the seventeenth century
and American decisions from the early 1800s relying on a rule of necessity and
went on to note that the rule has been consistently followed in this country in
both state and federal courts. 449 U.S. at 214, 214-15, nn 14-17. The Court quoted
from the holdings of the Supreme Court of Kansas in State ex rel. Mitchell v. Sage
Stores Co., 157 Kan 622, 143 P2d 652 (1943), aff’d, 323 U.S. 32, 65 S. Ct. 9, 89 L. Ed.
25 (1944), and the Supreme Court of Pennsylvania in Philadelphia v. Fox, 64 Pa
169 (1870), and the Court cited 14 state court decisions and four federal court
decisions applying the rule. Id. at 214, 214-15 nn 16-17.
674 Moro v. State of Oregon
that ‘ “although a judge had better not, if it can be avoided,
take part in the decision of a case in which he has any per-
sonal interest, yet he not only may but must do so if the case
cannot be heard otherwise.” ’ ”
Beer v. U.S., 696 F3d 1174, 1179 (Fed Cir 2012) (quoting
Will, 449 U.S. at 213 (quoting F. Pollock, A First Book of
Jurisprudence 270 (6th ed 1929))) (citations omitted; first
emphasis added; second emphasis added in Beer), cert den,
133 S. Ct. 1997 (2013).
Implicit in Will and explicit in various lower court
decisions is the conclusion that, when disqualification would
leave the parties without a tribunal, the parties’ loss of the
right to have their case heard at all is the more substantial
deprivation of due process and justifies the rule of necessity.
See Atkins v. United States, 556 F2d 1028, 1040 (Ct Cl 1977),
cert den, 434 U.S. 1009 (1978) (“Should we refuse to hear and
decide [the plaintiffs’] cases, the doors of the courts would be
closed to them. This could amount to a denial of due process
under the 14th amendment to the Constitution.”). In other
words, the rule of necessity itself is premised on the par-
ties’ due process right to have a tribunal available to hear
their case. See Citizens Protecting Michigan’s Constitution
v. Secretary of State, 482 Mich. 949, 955, 755 NW2d 147, 152
(2008) (noting that the rule of necessity is “a doctrine itself
predicated on due process requirements”).
As discussed above, under Oregon law, the only per-
sons other than the current members of the court who may
serve on the Oregon Supreme Court for purposes of decid-
ing these cases are retired judges of this court or current
judges of lower Oregon state courts. Any substitute judge
authorized by Oregon law to decide these cases would have
the same disqualifying interest. Because disqualification
would leave petitioners here without a tribunal to decide
their claims, and in light of the legislature’s express grant
of jurisdiction to this court to decide challenges to the 2013
PERS legislation, we conclude that the rule of necessity
applies and that the members of this court are not disqual-
ified from deciding these cases because of any interest in
the proceeding under ORS 14.210(1)(a) or Rule 3.10(A) of
Cite as 354 Or 657 (2014) 675
the Code. We also conclude, as have other state and federal
courts that have considered the issue, that application of the
rule of necessity in these circumstances is not a denial of
due process.
Intervenor Central Oregon Irrigation District’s
motions to disqualify the members of this court and the
Special Master are denied.