By Peter H. Glade, Multnomah Bar Association President
Once again, Oregon is faced with a ballot initiative challenging judicial independence.
The sponsors of a proposed constitutional amendment have gathered sufficient signatures to place Measure 40 on the ballot. Adoption of this amendment would result in the division of the state for the purpose of electing judges to our Court of Appeals and justices to our Supreme Court. The MBA Board has already voted to oppose what we believe is an attempt to politicize the judicial branch, making it more likely to be influenced by political pressure. The amendment is a bad idea for a number of reasons, and past attempts have been rejected by Oregon’s voters.
And yet, the sponsors of this initiative keep returning in the hopes of crafting a message that will somehow convince voters their past judgment was wrong. The persuasive power of their disingenuous appeal to voters’ belief in representative democracy should not be underestimated, particularly because the counterarguments are harder to deliver. But there is no group more qualified to explain the dangers of this measure than members of the bar.
One of the first challenges facing those of us opposing this constitutional amendment stems from an unfortunate but undeniable fact of political life. Many citizens do not vote, and many of those who do are uninformed. Candidates and special interest groups will be knocking on doors, filling our mailboxes and clogging the airwaves. The importance of any one particular issue can easily be missed. So, we must educate our friends, neighbors, acquaintances and strangers on the street to the dramatic effect electing judges by district will have on our state: the most qualified candidates for open positions could be disqualified because of their choice of residence.
The idea that we would want the Court of Appeals and the Supreme Court to bring regional interests to bear when interpreting and applying state law undermines the very idea of judicial independence. It encourages the belief that the rule of law should vary depending on whether you live in a rural or urban community. Why else would one wish to make sure that all regions of the state are “represented” on the courts? While it is no doubt true that judges draw upon their own experience when exercising judgment, we do not expect or want them to decide cases on the basis of the interests of the region from which they were elected. We should instead aspire to a rule of law that transcends those regional interests, and ensures a non-partisan bench.
The state benefits from the fact that our appellate courts reflect the state-wide electorate rather than disparate regional interests. Keeping our appellate courts free from manipulation by regional politics does not guarantee that the judiciary will remain above the sway of political considerations, but electing judges by district increases the chance that local politics will unduly influence judicial deliberations.
Courts occasionally make unpopular decisions. And lately, those on the losing end of controversial decisions have sought redress by unseating the offending judge rather than pursuing traditional appellate or legislative remedies. These efforts undermine judicial independence by inducing judges to weigh the possibility of political retribution whenever they consider a politically contentious issue. There is a place in our system for exercising the right to recall judges, and, as a matter of policy, this state has decided that electing our state judges is a better idea than appointing them for life. But the intent was not to influence judicial reasoning. We still want our courts to be free from political influence. That’s what “independence” means.
In addition to changing the composition of the appellate courts and limiting each voter’s right to vote for appellate judges, Measure 40 provides an opportunity for mischief. It would be far easier for a special interest group to mount a recall campaign against a locally elected judge, or to defeat that judge in a local election than to do the same to one elected state-wide. This creates a better opportunity for political machines to bring to bear on the judicial system the very forces from which we aspire to keep it independent. This opportunity would equally be available to the right or the left, and it would politicize the courts as never before.
We should not kid ourselves that such political influence would merely reflect the views of the local population of the district in question. Just as this ballot measure is supported in large part by interest groups from outside this state, the judicial elections east of the Cascades could become proxy battles between political camps from the Willamette Valley.
Many of the arguments mounted in favor of past efforts to regionalize judicial elections have complained about the governor’s ability to appoint replacements for early-retiring judges in time for the new appointees to run as incumbents. Incumbent judges rarely draw opponents, and so, the sponsors reason, the political system already influences the selection of judges. These facts may be so, but if they create a problem, they should be addressed head on. Regionalizing elections will not change them.
I know there are judges and lawyers who support Measure 40. And, candidly, I find the idyllic picture of our appellate judges gathering from all four corners of the state to deliberate on the legal issues of the day alluring in a sentimental kind of way. But, electing the appellate judges by district severely undermines the independence of the judiciary, threatening the rule of law. Part of the MBA’s mission is stewardship of the judicial system, and that is why we have taken a strong stand against this threat.
So, I urge you to join in the effort to defeat this measure. The campaign against Constitutional Amendment 40 is being managed by the No on Constitutional Amendment 40 Committee, c/o C&E Systems, 921 SW Washington, Suite 470, Portland, OR 97205. You can help by donating money, volunteering your help or both. And, educating your clients, friends, neighbors and the public to the significance of this issue whenever you get the chance may be one of the most effective things you can do to preserve the independence of the judicial system.
This column appeared in the September 2006 issue of Multnomah Lawyer, the monthly newsletter of the Multnomah Bar Association. Peter Glade was president of the association from 2006 to 2007. View this article on the MBA's Web site at http://www.mbabar.org/docs/newsletters/ml_sept2006.pdf.
