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 US 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 US

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 US 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 US 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 US 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 US 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 US 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 US 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 US 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 US 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.