Page 1 – FIRST AMENDED COMPLAINT

Tyler Smith, OSB# 075287

Tyler Smith & Associates P.C.

181 N. Grant St. STE 212

Canby, OR 97013

503-266-5590(p); 503-212-6392(f)

Tyler@RuralBusinessAttorneys.com

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

DANIEL RE, 

 Plaintiff,

 v. 

STATE OF OREGON, Governor KATE 

BROWN, Oregon Judicial Department, by and 

through KINGSLEY W. CLICK, as State 

Court Administrator

 Defendants.

Case No.: 6:15-cv-01097-TC

COMPLAINT

Declaratory Judgment; (42 U.S.C. § 1983

Violation of Civil Rights: Equal Protection;

Free Association; Violation of Article 1 

Section 20) and Attorney Fees (42 U.S.C. § 

1988); 

Plaintiff alleges:

I. Introduction

1.

Plaintiff Daniel Re is a citizen of the United States and resident of Oregon. Mr. Re is a 

registered voter and votes in nearly every election, including those elections which occur at the 

same time as elections for Judges, and for the Justices of the Oregon Supreme Court. This action 

arises under the Fourteenth Amendment to the United States Constitution.

II. Statement of Jurisdiction and Venue

2.

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This Court has jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 

1343 (constitutionally protected rights). This court has subject matter jurisdiction to hear claims 

made under 42 U.S.C. § 1983.

3.

Venue in this court is proper under 28 U.S.C. § 1391 (b) because this case consists of a 

challenge to the constitutionality of an Oregon Statute, the State of Oregon is a party and the 

capitol city is Salem Oregon. 

4.

All, or substantially all of the events giving rise to the claim occurred in the Federal 

Judicial District of Oregon, Eugene Division.

III. Parties

5.

Daniel Re is a citizen of the United States, resident of the state of Oregon and voter. Mr. 

Re is opposed to the continual expansion and budget deficiencies created by the PERS system 

and PERS benefit costs to the public. Mr. Re has an interest and a right to be able to run a 

candidate for election as a Judge of the Supreme Court who is not biased or otherwise a 

participant in the PERS system. Mr. Re has an interest and a right to have the opportunity to 

vote for someone who is not by operation of law, thrust into having an instantaneous financial 

interest in the PERS system the moment they take office, while at the same time not even having

the ability to have other, non-interested judges hear matters Mr. Re or other may bring to the 

court relating to PERS benefits or the PERS system. Mr. Re is a member of the Oregon State 

Bar and accordingly an officer of the court who among other areas of the law practices estate 

planning. Mr. Re has an interest and a right to end discrimination in the selection of public 

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officials which undermines the legitimacy of the representative government process and the 

integrity the judicial process he is a part of. Mr. Re has either been a party to, or litigated 

multiple cases where bias or potentially disqualifying memberships by judges has been litigated 

or at issue in the case. Mr. Re has attempted to have pro tempore judges appointed in those 

matters to remove the potentially disqualifying membership and characteristic from the 

adjudicator of the matter and such request have been repeatedly refused, denied or ignored. Mr. 

Re and other similarly situated residents of Oregon have been denied the right and opportunity to 

elect a Judge to adjudicate such matters who is free from the statutorily imposed personal 

financial interest in PERS matters.

6. 

Defendants are the State of Oregon, and officials of the State of Oregon, at all times 

acting under color of law and in their official capacities, including Defendant Governor Brown

as the State’s Chief Executive Officer, and Kingsley Click, as the administrative head of the

Oregon Judicial Department as State Court Administrator. Each Defendant is believed to have a 

role in applying, or potentially defending the particular statute which is being challenged in this 

suit. 

IV. General Allegations

7.

Oregon Revised Statute 238.505(1) (Or Laws 1983 Chapter 770 Section 3, “ORS 

238.505” hereafter)) establishes by law that all Judges eligible for public employee retirement 

system benefits become members of Oregon Public Employee Retirement System (“PERS”)

upon being elected or appointed to office. The Oregon Revised statute says, 

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“(1) Except as provided in subsection (2) of this section, a person who is not a judge on 

December 31, 1983, and who is elected or appointed to the office of judge on or after 

January 1, 1984, shall become a judge member on the date the person takes the office.

(2) A person who, by reason of the age at which becoming a judge, could not make 

contributions to the Public Employees Retirement Fund during each of five calendar 

years as a judge member at or before attaining the age of 75 years shall not become a 

judge member.”

Or. Rev. Stat. 238.505.

8.

The Oregon Supreme Court, in the case of Moro v. State, 354 Or. 657, opinion filed 

January 16, 2014 held that because all judges who could potentially sit on the Oregon Supreme 

Court and issue a decision relating to a PERS matter, the rule of necessity applied and therefore 

Judges could not be disqualified based upon their having an economic interest in the PERS 

system. The Oregon Supreme Court stated, 

“because all judges who could decide these cases share the same potentially disqualifying 

economic interest, the rule of necessity applies. 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”. Moro v. State, 354 Or. at 672.

By operation of the law, ORS 238.505 creates a system whereby all persons who are 

elected or appointed to a position that could lawfully serve as a Supreme Court Judge or even a 

Pro Tem Supreme Court Judge would have the same potentially disqualifying personal economic 

interest in PERS matters. No person could be elected to the Oregon Supreme Court that does not 

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then become instantaneously tainted with the stain of a potentially disqualifying characteristic in 

that they have an economic interest in the PERS system and are a member of that group. 

9.

Plaintiff Daniel Re, and other voters similarly situated who are not PERS members are 

not given the full and fair opportunity to participate in the election of Judges, particularly

Supreme Court Judges on an equal basis as PERS members. Under that statute, elected judges 

will always be, and the voter is only given the option to elect, someone who is or will be a PERS 

Member. Electors who are not PERS members cannot elect someone to the Supreme Court who 

will share their non-PERS member status. PERS members and those financially benefiting from 

the PERS system are predisposed to favor that system that rewards them financially and gives 

them a financial benefit. Because Supreme Court members cannot be disqualified on that 

ground, and cannot all recuse themselves because of the rule of necessity, there is therefore no 

way to test, measure or even determine whether the predisposition for bias effects the outcome of 

any PERS case, nor is there an option to elect someone who will not be forced into having what 

would otherwise be a potentially disqualifying personal financial interest in PERS cases. There 

is no legitimate or compelling reason for this distinction. Judges can have their own separate 

retirement system independent of the PERS system, and from approximately 1943 to 1983 did 

have their own independent retirement plan. Thus other options are readily available that do not 

deny voters the option of electing someone who will not be a PERS member, and do not force or 

invoke the rule of necessity for judges to decide on PERS cases when they have a potentially 

disqualifying financial interest in the case. Judges could be given the opportunity to opt-out of 

the PERS benefit system so they would not face the potentially disqualifying bias. Less 

burdensome alternatives are readily available such as an independent system.

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10.

ORS 238.505 denies Mr. Re and other voters similarly situated the opportunity to elect a 

public official who is not immediately placed in a position of potential bias and potential conflict 

of interest in relation to PERS matters. Since ORS 238.505 dictates that all judges become 

PERS members, the statute eliminates voter’s opportunity to elect someone without a financial 

interest in the PERS system. Other voters, particularly those who are PERS members, in the 

same jurisdiction as Mr. Re do not suffer from the same infringement and diminishment of their 

voting rights because other votes can select someone who shares their economic interest in 

PERS, Mr. Re cannot select someone free from the potentially disqualifying interest in PERS.

All other voters are likewise prohibited from running a candidate or electing a candidate that is 

not subjected to, and instantly tainted with the potentially disqualifying characteristic imposed by 

ORS 238.505. This effect dilutes the effectiveness of the votes of Mr. Re, and other voters like 

him. 

11.

ORS 238.505 discriminates between people of different employment statuses and 

occupations by giving special rights to public employees and members of the PERS system that 

are not given to private employees and non-PERS members. If you work for the government 

you are given the option of electing someone that shares your membership status as a beneficiary 

of the system, if your occupation is not with the government then your choices are limited to 

electing those who will be a PERS members if they ever have to decide a PERS issue, and 

cannot be disqualified from ruling on PERS matters. Less restrictive and less burdensome 

alternatives are available such as an independent system of retirement benefits just for elected 

Judges that would not burden Plaintiff’s rights.

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FIRST CLAIM FOR RELIEF

Against All Defendants

(42 U.S.C. § 1983, Deprivation of Civil Rights)

Count 1 – Equal Protection

12.

Plaintiff hereby re-alleges and incorporates by reference all of the allegations in 

paragraphs 1 through 11 above as if fully set forth herein.

13.

Plaintiff has been denied equal protection of the laws by being denied the voting 

privileges given to PERS members, and had his right to free speech and free association

infringed by operation of ORS 238.505. 

14.

Article VII, Section 1 of the Oregon Constitution establishes that Judges in Oregon are to 

be elected by the legal voters of Oregon. However, ORS 238.505 forces all judges, upon being 

elected, to become members of, and financial beneficiaries of, the PERS system. ORS 238.505 

deprives Plaintiff the ability to elect someone who will not become a PERS member. ORS 

238.505 thereby closes the field of candidates that may be elected and serve as judge to those 

who will be PERS members and effects his right to vote. Plaintiff does not have the option or 

ability to nominate, elect and present a case to an elected non-PERS member Judge. Plaintiff, 

and those similarly situated, are deprived of the ability to cast a meaningful ballot vote for Judge 

races. Plaintiff’s right to vote is severely burdened by this limitation and prohibition on a nonPERS member being elected Judge. His option to vote for judges is thereby limited, and is 

completely eliminated with respect to potentially having a non-PERS member judge on the 

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ballot. ORS 238.505 is not supported by any compelling government interest, it is not narrowly 

tailored, and favors PERS members over non-PERS members in whom can be elected to serve as 

a Judge. Plaintiff cannot participate in elections in the same basis as other citizens who are 

PERS members because PERS members are given to option to elect someone who will become a 

member of their group and non-PERS members cannot.

15.

ORS 238.505 is unconstitutional in all applications in that it does not allow a Judge to be 

elected and remain a non-PERS member, nor does it allow voters to elect a judicial candidate 

who will not automatically become a PERS member. The infringement on Plaintiff’s right to 

vote and elect a non-PERS member judge is particularly burdensome because Judge’s may not 

be disqualified, through the ordinary disqualification process due to their PERS membership or 

even because of their potentially disqualifying economic interest in PERS. Plaintiff, no matter 

how politically astute, cannot elect someone he knows will be free from the economic interest, 

and potential accompanying bias in favor of the financial benefit Judges receive from the PERS 

system. This discrimination in determining who may participate in judicial offices and in the 

selection of public officials undermines the legitimacy of representative government and 

undermines the appearance of fairness in judicial proceedings relating to PERS matters. 

16.

Plaintiff’s constitutional rights have been violated by being deprived of the full voting 

privilege that is given to PERS members. Plaintiff is entitled to declaratory and injunctive relief 

ruling that ORS 238.505 is unconstitutional on its face, enjoining further, future, application of 

ORS 238.505 to newly elected judges, and awarding Plaintiff nominal damages, costs, 

disbursements and reasonable attorney fees under 42 U.S.C. § 1988. Plaintiff is entitled to a 

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permanent injunction any future application of ORS 238.505; a ruling that ORS 238.505 violates 

Plaintiff’s right to vote and to be treated equally as others who are similarly situated with respect 

to that right to vote for judges.

Count 2 – First Amendment

17.

Plaintiff hereby re-alleges and incorporates by reference all of the allegations in 

paragraphs 1 through 16 above as if fully set forth herein.

18.

ORS 238.505 deprives Plaintiff of the right to free association by forcing him to associate 

with and support a future PERS member if he wants to exercise his right to vote for Judge. That 

compelled choice denies him the right remain free from espousing a position he does not support 

while at the same time preserving his right to vote for judge when voting in an election. ORS 

238.505 deprives Plaintiff the opportunity associate with a candidate of his choice placed on the 

ballot. Because ORS 238.505 makes it impossible for a judge to be elected whom then does not 

automatically become a PERS member, Mr. Re, or any other attorney, would be compelled to 

join the PERS system and become a member in order to exercise his right to serve if he was 

elected as Judge. ORS 238.505 creates an unavoidable and unnecessary burden on Mr. Re’s 

right to seek elected office or associate with someone he hopes to elect to office, by forcing 

Plaintiff to accept or espouse a belief he does not agree with, join into a membership he does not 

choose to be voluntarily associated with or support, and forces Plaintiff to choose between two 

constitutionally protected rights. Less restrictive alternative means are available for the 

government to compensate its judges and less restrictive means exist to plan and foster a 

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retirement program that would keep in separate from and independent from that of the PERS 

system, which is a system that is frequently litigated and very political.

19.

Plaintiff Daniel Re would even like to be able to consider a run for election as a Judge, or 

even one of the Justices of the Oregon Supreme Court someday, but does not want to associate 

himself as a PERS member. Plaintiff does not want to be forced into PERS membership, does 

not want to be forced to accept PERS benefits, and does not want to be forced into a scenario 

where he could be forced by operation of law to violate any of the judicial rules laid out in the 

Oregon Code of Judicial Conduct, such as JR 1-101(A, C, E, F) JR 2-106, JR 3, or JR 4-101(2). 

However Mr. Re also wants to see judges who are elected that have no financial interest in any 

of the cases they rule upon.

20.

Plaintiff is entitled to a ruling that ORS 238.505 is unconstitutional, enjoining its 

application, nominal damages, and awarding Plaintiff reasonable attorney fees and costs pursuant 

to 42 U.S.C. § 1988. 

SECOND CLAIM FOR RELIEF

Against All Defendants

(Violation of Article 1 Section 20 of the Oregon Constitution)

21.

Plaintiff hereby re-alleges and incorporates by reference all of the allegations in 

paragraphs 1 through 20 above as if fully set forth herein. 

22.

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Plaintiff has been denied the right to an equal opportunity to vote and to have someone 

from his non-PERS membership classification elected and serve as a judge of the state of 

Oregon. ORS 238.505 treats non-PERS members differently than other voters who are PERS 

members, with respect to the vote(s) for judges and denies them an opportunity to vote for 

someone who will not be in this special class of PERS members. PERS members are given the 

special privileges of having a guarantee that all judges will share a beneficial financial interest in 

the PERS system, and of being able to vote for someone who will share their same class 

membership.

23.

Plaintiff is entitled to a ruling that ORS 238.505 is unconstitutional, nominal damages, 

enjoining its future application to newly elected judges, and awarding Plaintiff reasonable 

attorney fees and costs pursuant to 42 U.S.C. § 1988. 

PLAINTIFF’S THIRD CLAIM FOR RELIEF

Against All Defendants

Declaratory Judgment - 28 U.S.C. §2201

Count 1 – Equal Protection

(Fourteenth Amendment, Equal Protection of the Right to Vote) 

24.

Plaintiff re-alleges and incorporates by reference that allegations contained in paragraphs

1 through 23 above as is full set forth herein.

25.

Plaintiff is entitled to a declaratory ruling on the constitutional validity of ORS 238.505, 

and if and when found in violation of the Constitutional rights of Plaintiff as alleged above, 

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Plaintiff is entitled to permanent injunctive relief against further, future, application of ORS 

238.505, costs disbursements and reasonably attorney fees pursuant to 42 U.S.C. § 1983 through 

28 U.S.C. § 2202.

Count 2 – First Amendment

(Violation of the First Amendment of the United States Constitution – Right to Free Speech and 

Free Association)

26.

Plaintiff re-alleges and incorporates by reference that allegations contained in paragraphs 

1 through 25 above as is full set forth herein.

27.

Plaintiff is entitled to a declaratory ruling on the constitutional validity of ORS 238.505, 

and if and when found in violation of the Constitutional rights of Plaintiff as alleged above, 

Plaintiff is entitled to permanent injunctive relief against further, future, application of ORS 

238.505 to any newly elected judges, costs disbursements and reasonable attorney fees pursuant 

to 28 U.S.C. § 1983 through 28 U.S.C. § 2202.

Prayer for Relief

WHEREFORE, Plaintiff seeks a judgment and award in favor of Plaintiff as follows:

On the First Claim for Relief, counts one and two:

a. A judgement declaring ORS 238.505 unconstitutional; 

b. A permanent injunction on future operation of ORS 238.505 to future newly elected 

judges;

c. Nominal damages;

d. An award of reasonable attorney fees, costs and disbursements; and

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c. For any such other relief the Court deems just and equitable.

On the Second Claim for Relief:

a. A judgement declaring ORS 238.505 unconstitutional;

b. A permanent injunction on future operation of ORS 238.505 to future newly elected 

judges;

e. Nominal damages;

f. An award of reasonable attorney fees, costs and disbursements; and

c. For any such other relief the Court deems just and equitable.

On the Third Claim for Relief counts one and two:

a. Declaratory relief declaring ORS 238.505 unconstitutional and permanently enjoining 

application to any future newly elected judges;

b. Costs, disbursements and reasonable attorney fees under 42 U.S.C. §1983;

c. For any such other relief as this court deems just and equitable.

Dated this 17th day of August, 2015.

Respectfully submitted,

s/Tyler Smith___________________

Tyler Smith, OSB# 075287

Tyler Smith & Associates P.C. 

181 N Grant St. STE 212

Canby, OR 97013

Tyler@RuralBusinessAttorneys.com

503-266-5590 (p); 503-212-6392(f)

Of attorneys for Plaintiff

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VERIFICATION

I Daniel Re, being over the age of 18, a resident of the State of Oregon, and the Plaintiff in the 

above captioned Complaint, do hereby certify under penalty of perjury that:

1. I have read the contents of the First Amended Complaint herein (Verified Complaint) and 

verify that the statements made therein are true to the best of my knowledge, information 

and belief.

2. I certify that the foregoing statements of fact made by me in the Complaint are true to the 

best of my knowledge and personal information and I am aware that if any of the 

foregoing statement made by me are willfully false, I am subject to the penalty for 

perjury.

Dated: _____8/13/15___________

s/Daniel Re__________________________________

Daniel Re

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