Oregon State Bar Bulletin — AUGUST 2012

When Oregon Court of Appeals Judge Timothy J. Sercombe finished in third place and thus lost the May primary race for an open seat on the Oregon Supreme Court, his views of how the state should select appellate judges didn’t change.

Before and after, it was — like for many others — ambivalent. Although public support for electing judges is common, polls also consistently show that the populace believes judicial campaign contributions affect judges’ decisions.

A 2009 Gallup poll found that 89 percent of voters think the influence of campaign contributions on judges is a problem, and 90 percent believe that a judge should not hear a case involving an individual or group that contributed to the judge’s campaign. In addition, a 2010 Harris poll found that more than 70 percent of Americans are convinced that campaign contributions influence courtroom decisions.

In recent years, legislators, governors, courts and citizens’ groups in nearly every state have introduced proposals to limit the role of politics in the selection of state judges, according to the American Judicature Society. “The extent of these activities underscores the recognition that an independent judiciary is essential to the maintenance of public trust and confidence in the court system,” the society contends.

Sercombe supports Oregon’s system of directly electing judges because he believes doing so helps ensure “the accountability of the courts to the people. I think that’s an important part of legitimizing what the courts do,” he says.

At the same time, his experience in the election drove home for him more than ever the demands and drawbacks of fundraising required to run for a judicial office.

“It’s difficult and expensive to run a statewide judicial campaign, and it poses a particular challenge in that voters have less information about how courts work, from which to make political judgments, than they do about what their state legislator or governor is doing,” Sercombe says. “So it’s a challenge to figure out a way to conduct those elections and make them less vulnerable to outside influences and special interests.”

This is particularly true, he found, if all of the candidates are qualified people, because it means “you need to raise a fair amount of money to communicate your qualifications to the voters.”

And, for Sercombe, that is where the problem lies. In order to be successful, a candidate needs to raise large amounts of money from single sources.

“My concern is that it’s hard to raise enough money to do that without obtaining significant amounts from persons who have interests in matters that come before the court. If that’s the necessary ingredient for success, it comes at a cost. It makes a judge somewhat beholden to that source of money, that contributor. That’s not what we elect judges to be. It’s important to be unbiased.”

The Revised Oregon Code of Judicial Conduct states, among other provisions, that judges must not:

Make pledges or promises of conduct in office that could inhibit or compromise the faithful, impartial and diligent performance of the duties of the office

Publicly identify, for the purpose of election, as a member of a political party other than by registering to vote

Personally solicit campaign contributions in money or in kind

“I don’t disagree with electing judges on a statewide basis, but I only wish there were better ways of getting information to the voters about (candidates’) qualifications,” says Sercombe. Possible options might be public financing of judicial races, or at least some subsidy to campaigns beyond just the voters’ pamphlet, he suggests.

Raising “big chunks from single sources will come at a cost to the judiciary,” he concludes. “That’s the concern I have now about the way we elect appellate judges.”

‘A Really Troubling Issue’
In that regard, his sentiment is shared by former Oregon Supreme Court Chief Justice Paul J. De Muniz. He spearheaded the formation of, and now chairs, the Work Group on Appellate Judicial Selection and Retention in Oregon, which is studying how Oregon and other states select judges for a state’s two highest courts, and whether alterations to our method are in order.

“I am very worried that the influence of the special-interest financing of judicial election campaigns is eroding the public’s confidence in the courts,” says De Muniz, who continues to serve as a justice pending his approaching retirement.

Nationally, he points out, the increasing politicization of state judicial elections puts at risk judicial independence and public confidence in the impartiality of judges’ decisions. The escalating cost of campaigns, and the increasing involvement of partisan politics and special-interest groups in that process, pose a severe threat to an independent and fair judiciary, he says.

Remaining independent is “the cornerstone of what the judiciary is supposed to do,” De Muniz says. “If the public loses the confidence and trust, what happens to our system of government?”

In judicial campaigns in states such as Wisconsin, Iowa and West Virginia, where large contributions from special interests led directly to election of judges favored by those groups, the campaigns were “marketed to voters on identifying what (special interests) believe will be a judge’s vote in a given issue,” he says. For example, in the 2010 Iowa election, the qualifications and reasoning of the three justices who were defeated were never in question, but only that “they voted against the majoritarian will,” he says, striking down a state law that had banned same-sex marriages.

Special interests wanting the justices defeated spent around $1 million, $900,000 of which came from out of state. Likewise, outside groups spent $3.6 million in the Wisconsin Supreme Court spring 2011 race.

Rep. Chris Garrett, D-Lake Oswego, a lawyer with Perkins Coie and a member of the state work group, noted in an opinion piece last November that in 2007, the West Virginia Supreme Court threw out a damages award against a coal company. “The court’s vote was split 3-2, with the deciding vote cast by a new justice whom the coal company had just spent $3 million to elect,” Garrett wrote in The Oregonian.

“A new report by the Brennan Center for Justice describes how big business and other special interests have embarked on a ‘hostile takeover’ of state judicial elections. The report describes a ‘coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law.’

“Oregonians have not had to face this scenario, thankfully,” Garrett wrote. “But it may be just a matter of time. Like many other states, Oregon elects its state judges. Unlike many other states, Oregon has no rules limiting the dollar amounts that can be contributed in state elections. Thus, unless we make changes to our system of selecting judges, we are at risk of joining other states that are seeing a flood of special-interest money into judicial elections.”

Moreover, the U.S. Supreme Court’s 2010 Citizens United v. Federal Election Commission decision, which held that political spending is a form of protected speech under the First Amendment, “means a state is likely powerless to regulate the amount of money being brought into third-party judicial elections,” notes De Muniz.

Like Sercombe, prominent Portland criminal defense attorney Janet Lee Hoffman favors election of judges, but finds problematic that judges must become fundraisers in order to compete and let voters know who they are. Judges are not trained to be fundraisers, nor are they cut out for it, she says. “We’re dealing with positions where you have to be neutral and give people a fair shake. The appearance of judges fundraising and campaigning is a little bit opposite of a neutral judiciary.”

On the other hand, most voters don’t know who their judges are or on what basis citizens can evaluate their character and qualifications. As a result, candidates are faced with the challenge of conveying those qualities to the public, despite the constraints the law places on what they can say and do, she adds. “It’s a really troubling issue.”

Hoffman, who was part of a three-person panel that moderated an April debate among the three candidates vying to replace retiring Justice Robert Durham, is following with interest what the work group concludes. “It’s a shame that it’s come down to this. Because it reflects an uneasiness, which I share,” with the perception of fair elections “when unlimited money can come into a state and influence who’s picked based on political issues,” she says.

“I believe in direct democracy, I really do.” But the Citizens United ruling changed the landscape, Hoffman says. “I don’t believe direct elections are healthy to generating confidence in the judiciary, ... but it’s only grudgingly that I say that.”

If we move to an appointed system, the question becomes whether you keep judges for life or require that they be reappointed after a certain period of time.

“I don’t know by what criteria you would reappoint,” says Hoffman. “In my mind, it would have to be automatic reappointment unless the judge violated the judicial code of ethics.” She is unsure how — whether an appointment committee alone weighs in or public input is permitted — “meaningful review” could be conducted without the process becoming “politicized.”

Background and History
As with contentious issues such as capital punishment, public preferences for selecting judges have waxed and waned over the history of the nation. The states currently differ widely in the method used to select appellate judges. According to the American Judicature Society, the tally for selecting them is, as follows, by:

Gubernatorial appointment (without any nominating commission preselecting candidates): Maine, Massachusetts and New Jersey

Legislative appointment: Connecticut, South Carolina and Virginia

Partisan elections: Alabama, Illinois, Louisiana, New Mexico, Pennsylvania, Texas and West Virginia

Nonpartisan elections: Arkansas, Georgia, Idaho, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Ohio, Oregon, Washington and Wisconsin

Merit selection, including various forms of gubernatorial appointment from a list of recommendations from a nominating body, with or without retention election: Alaska, Arizona, California, Colorado, Delaware, Florida, Hawaii, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New Hampshire, New York, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Vermont and Wyoming

De Muniz points out that Oregon held partisan judicial elections until 1931. At that time, the legislature adopted the bar’s proposal and passed legislation abolishing partisan elections for the judiciary, requiring that candidates’ names be printed on the ballot “without any party designation.” The legislation also prohibited judicial candidates from referring to their party affiliation.

“Unlike the framers of the federal Constitution, who concluded that appointing judges for life was integral to the creation of an independent judicial branch of government, the delegates to Oregon’s constitutional convention of 1857 — caught up in the national wave of Jacksonian populism — concluded that an election for a specified term, rather than appointment and confirmation, was the preferable method of selecting judges,” according to De Muniz. They believed they were ensuring the independence of judges by instituting popular vote, he says.

Just as Oregon’s government was founded by Jacksonian Democrats, the state continues to be “Jacksonian in its outlook,” observes veteran Stoel Rives lawyer James N. Westwood, also a member of the state work group. “We’re kind of locked in a time warp. Progressivism had its way with Oregon, and we’re still experiencing that.”

Westwood, who unsuccessfully ran for an open seat on the Oregon Supreme Court in 1998, sought appointment to the court in 1997 and sought appointment to the Court of Appeals in late 1998, has “gone back and forth” in his views about how the state should select its appellate judges, he concedes.

Presently his choice would be the federal way: appointment of judges for life, with appointment made by the governor. “It guarantees judicial independence, more or less,” and removes the influence of money on elections, he says.

However, Westwood doesn’t accept the notion that the U.S. Supreme Court’s Citizens United decision was “a travesty. ... I understand the outrage. My response is, let’s amend the Constitution if that’s so bad. Political speech has to be protected above all others; that’s what the Founders had in mind.”

Further, he views the process of judicial selection as a political process — and not in a pejorative sense. “I would make it more political, but more politically balanced on the courts. We don’t have political diversity on the courts.” A major reason, he says, is that Democrats have held the governorship for a quarter of a century.

Westwood says he doesn’t mind that judicial races must be run as nonpartisan, but “gubernatorial appointments ought to take political diversity into consideration. A candidate should be able to state whether they are a Democrat or Republican.” If candidates could do this, it would give the voters more confidence that “I know this person better,” he says.

Whether most Oregonians prefer to retain the right to elect judicial candidates, in fact elected judges in contested races have been the exception rather than the rule. As the American Judicature Society notes about Oregon, the governor appoints judges to fill midterm vacancies on the courts, and the appointee stands for election at the next general election.

The society adds, “In recent years, approximately 85 percent of Oregon judges have first been appointed rather than elected to office, and the vast majority were unopposed in elections to retain their seats.”

Proposed Solutions
The Work Group on Appellate Judicial Selection and Retention in Oregon is meeting regularly, and De Muniz hopes the group can complete its review before the 2013 legislative session begins, so that, if the group reaches a consensus, it can make recommendations to the Legislature.

Hosted by the Oregon Law Commission, based at Willamette University, it is the largest work group ever assembled by the law commission, De Muniz notes. The commission lists 17 voting members, 11 “work group advisers,” 12 “work group interested persons” and five staff members.

“We’re trying to get information about what’s been done before, not just in Oregon but in other states,” explains Jeffrey C. Dobbins, executive director of the Oregon Law Commission and an assistant professor at Willamette University College of Law. He, along with the work group staff, supports the group with data and research.

Among the findings he shared with members: Of Oregon’s 2 million registered voters, only 600,000 typically vote in contested judicial contests. Moreover, big money spent on judicial races tends to increase turnout, Dobbins notes. “It’s an interesting problem in that states where you have money being spent, especially out-of-state, people pay more attention and the vote goes up.”

Whether the work group can reach agreement that Oregon needs to modify the way it chooses state judges is highly uncertain. De Muniz acknowledges that, over the past 20 years, no states that have made an attempt to change from the judicial election method have been successful in that effort. Moreover, the hurdle would be particularly high for this state, and not just because of its populist tradition.

“If we’re going to change the fundamental way in which we select judges, it will require a constitutional referral, because our constitution mandates the election of judges,” he says. Such an effort presumably would necessitate a herculean public relations campaign to convince citizens that a constitutional change is needed to avoid future damage to the courts’ reputation.

The American Judicature Society promotes a hybrid type of solution combining selection and election. Called merit selection, it was developed by society co-founder Albert Kales.

Former Supreme Court Justice Sandra Day O’Connor, a notable activist for judicial independence, has emphasized that the United States is the only nation in the world that elects judges. She long has been a strong advocate for merit selection systems as a method of reducing the amount of politics involved in judicial elections, according to De Muniz.

In a 2010 keynote address at Seattle University School of Law, O’Connor stated: “While our judiciary has always faced significant attacks, the single greatest threat to judicial independence now is fairly modern, and it’s uniquely American. It’s the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial election campaigns.”

The judicature society describes merit selection as a system in which the state sets up a bipartisan nominating commission that includes members of the legal community, as well as citizens. When a vacancy occurs on the court, hopefuls submit their applications to the commission. It then reviews applications, conducts interviews with the applicants, and assesses the qualifications of each. The commission creates a list of names of those it believes are most qualified for the job, listing usually three to eight names, depending on the state. Then it gives the list to the governor, who chooses one of the people on the list and appoints that person to a judgeship.

After serving a term, the judge then is placed on the ballot for what is called a retention election, and citizens get to decide whether or not the judge will remain on the bench.

“Not only does merit selection ensure that only the most qualified candidates become judges, but it also limits the influence of any one political party or public official,” the society contends. “In doing so, it frees judges from overt political influence and promotes a fair and impartial judiciary. Furthermore, retention elections provide a mechanism whereby those judges who are failing to live up to their responsibilities to the citizens can be removed from the bench. Unlike popular elections or appointment, merit selection seeks to balance judicial independence – by removing, as much as possible, direct political control over judges – with public accountability, by allowing citizens to decide whether the judge is retained in office.”

The society also rebuts the argument that electing judges is the best way to ensure diversity on the bench.

Research has demonstrated that “minority judges are significantly more likely to have been appointed than elected. ... The best way to achieve diversity is by using a well-designed merit selection system.” Even without provisions that specifically aim to produce diversity on the bench, merit selection is as effective as elections in producing greater numbers of women and minorities who serve on the bench, the society maintains.

De Muniz endorses a change for Oregon. He supports merit selection, but with a difference. His proposal would eliminate retention elections, which is the method used in nearly all of the states that employ merit selection systems. Instead, he would have retention decisions made by the same judicial nominating commission that draws up a recommended list of candidates for appointment. Appointments would be for a 10-year-term, with review by the commission at two years into the first term, then subsequent review near the end of any additional terms.

Retention elections merely move the problem forward of vast sums of special-interest money being used to try to pick or replace candidates based on social policy issues, he argues.

For instance, in the example of the 2009 Iowa Supreme Court, where it issued a unanimous decision striking down a ban on same-sex marriage, three members of the court faced retention elections. A nationally funded campaign led to the ouster of all three, and those same opponents of same-sex marriage expressed their intent to challenge the rest of the members of the court when they come up for retention elections this year and in 2014.

De Muniz believes that switching from elections to a nonpartisan commission and appointment system “would be a great step forward in preserving or restoring the public’s faith in the impartiality of judicial decisions.”


Cliff Collins is a Portland-area freelance writer and since 1991 has been a frequent contributor to the Bulletin. Reach him at tundra95877@mypacks.net.

© 2012 Cliff Collins

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