Oregon State Bar Bulletin — OCTOBER 2006

Parting Thoughts
Let’s Keep Politics Out of the Courts
By Susan Marmaduke and Jim Mountain

Measure 40 would amend the Oregon Constitution to end statewide elections of Oregon’s Supreme Court and Court of Appeals judges. Instead, each judge would be elected by — and could be recalled by — voters in smaller regional districts, which the legislature would establish and periodically reapportion. Measure 40 would enhance the influence of politics and special interests on Oregon’s two highest courts, threatening a core constitutional value: judicial independence.

Oregon voters narrowly defeated a similar initiative four years ago. The measure is appealing at first blush, because it invokes matters of genuine concern to most thoughtful voters. It promises to "restore accountability and fair representation…" Who would reject those bedrock principles of good government?

But that, in fact, is where the measure first goes wrong: It misunderstands the role of the judiciary in our system of government. Accountability is important to ensure that the bench is competent and honest. Judicial accountability does not, however, mean representing a constituency. Measure 40 directs the legislature to carve Oregon into seven separate districts for purposes of electing judges to the Supreme Court and five for the Court of Appeals. Voters would then elect judges to "represent" their district. It is not the role of the judicial branch to "represent" the people.The judicial branch is intended to serve as a check on the representative functions of the legislative and executive branches. We expect judges to decide disputes impartially, to protect individual rights even in the face of majority opposition and to be faithful to the law above all else. That is what we mean by judicial independence.

Oregonians have a healthy distrust of institutionalized power. We take the selection of appellate judges into our own hands, electing them to six-year terms, instead of deferring to the executive to appoint judges for life as in the federal system. Our existing system affords ample safeguards against the abuse of judicial power.

Measure 40 would upset that system, and it would do so in a manner that would infuse more political influence into the judiciary. The measure would preclude each voter from voting in all seven Oregon Supreme Court races; instead, each voter could vote in only one. Instead of voting in all 10 Court of Appeals races, each voter could vote in only two. Special interests will have greater impact on smaller, regional elections where a dollar goes farther and parochial interests are easier to exploit. Fifteen percent of the votes in just one district could force a recall election, instead of needing 15 percent of the voters in the entire state. Measure 40’s sponsors know the measure will make it easier to pick off appellate judges who make decisions they don’t like — or dissuade judges from making those decisions in the first place.

Measure 40 gives the legislature free rein in deciding where to draw the boundaries of the judicial districts, subject only to the requirement that the boundaries be "based on population." And, by requiring redistricting when legislative districts are reapportioned, Measure 40 assures that the lines will be drawn at the height of partisan wrangling and rancor in the legislature.

To make matters worse, Measure 40 authorizes the legislature to assign current judges to the districts it selects, enabling politicians to force our appellate judges to move to a remote district, or resign. The original Oregon Constitution provided for election of justices by district and for changing district boundaries, but it also stated that no change of districts could remove a justice from office or require the justice to change residence. Measure 40 contains no such limitations on the legislature’s power. It invites the legislature to play politics with the judiciary.

Measure 40 plays to our appreciation of geographic diversity. We need the best judges we can find, and every qualified Oregonian should have an equal opportunity to serve on our highest courts, regardless of whether he or she hails from Portland, Roseburg or Milton-Freewater. (In fact, current members of our appellate courts graduated from high school in each of those cities.) Measure 40 is, however, a Trojan horse for those who would politicize the judiciary. It puts our system of justice at risk.

As lawyers, we enjoy many privileges. In exchange, we undertake the responsibility of protecting the public’s access to impartial justice. It is the duty of each of us to educate our friends, neighbors, and family members about the dangers of Measure 40, and to urge them to vote no.

Susan Marmaduke and Jim Mountain are shareholders of Harrang Long Gary Rudnick, a firm with offices in Eugene, Salem and Portland. To read the statements of the Board of Governors and the House of Delegates — which both are opposing Ballot Measure 40 — see the Oregon State Bar website at www.osbar.org.

© 2006 Susan Marmaduke and Jim Mountain

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