Measure aims to toughen judicial races.

Byline: BILL BISHOP The Register-Guard

Measure 21 poses a simple question - whether voters want to have the option of voting for "none of the above" in judicial elections.

But opponents say the measure poses a more subtle and more important question - whether voters want to infuse a new level of politics into the state's courtrooms.

Currently, all vacant judicial positions are filled in the May primary in even-numbered years. The governor makes appointments to fill seats that come open in midterm and the appointee runs as the incumbent in the next scheduled election.

Measure 21 would fill all vacant judicial positions in the next primary or general election, with "none of the above" listed as a candidate.

The measure will increase the competition for judicial posts because lawyers rarely run against incumbents, says Don McIntire, the measure's chief petitioner and a well-known activist for statewide tax and government limits.

When "none of the above" wins more votes than any candidate, including an unopposed incumbent, Measure 21 would leave the office vacant until a human candidate eventually wins in a future primary or general election.

Opponents say the proposal will increase the length of vacancies, particularly in rural areas, and further slow the judicial system. Worse, they say, it will undermine judicial independence by making judges potential targets for special interests. Such special-interest groups could launch campaigns urging voters to support "none of the above" to remove judges who didn't support their political views.

McIntire says that is how it should be. It's naive to believe politics don't already play a big role in a judiciary where 87 percent of current state judges were appointed by a governor, he says.

"What is the matter with politics? This is a democracy," McIntire says. "Judges make decisions that are extremely political. To suggest all those people appointed by politicians are not political is either naive or disingenuous."

McIntire, a retired former health club owner from Gresham, says the measure will give voters a means of sending a message to judges who make bone-headed decisions.

For example, McIntire cites the "one little punk judge" in Marion County who threw out Measure 7 - a voter-approved measure to protect private property owners from lost property value caused by government regulation. The Oregon Supreme Court upheld the decision of Marion County Circuit Judge Paul Lipscomb that the measure as written was unconstitutional.

McIntire also cites the ruling by Marion County Circuit Judge Richard Barber Sr., throwing out the state's voter-approved term limit law. The Oregon Supreme Court also upheld that ruling.

If judges knew they might face an opponent named "none of the above" in the next election, they might temper such rash rulings, McIntire says. But he doubts the measure will have much real impact. He denies opponents' accusations the measure is an effort by special interests to intimidate judges and punish those who rule against them.

"It will not have a profound effect. Not a lot of judges will get tossed out because of this," McIntire says.

Opponents nevertheless say the measure is all about special interests looking for a way to attack judges who don't agree with their ideology by running "none of the above" campaigns when they don't get their way.

"They'd rather have a vacant seat than have a judge who disagrees with them," says Kathleen Sullivan, campaign manager for the Coalition to Defeat Measures 21 and 22. "This is really going to give a lot of life to special interests."

Retired Oregon Supreme Court Justice Edwin Peterson, who served 14 years on the high court and joined other former justices and legal scholars in a voters pamphlet statement opposing the measure, says Measure 21 incorrectly implies that judges are obliged to represent the views of voters or influential constituents.

"The judge's No. 1 loyalty cannot be to any constituent," Peterson says. "The judge's No. 1 loyalty has to be to uphold the law."

In cases large and small, a judge may be forced to make an unpopular decision because some laws appear to be unfair, even though they serve an important function. Statutes of limitation for prosecuting criminals and for filing civil suits are examples, he says. Controversy over a judicial ruling grows in proportion to the notoriety of the case.

As a member of the Oregon Supreme Court, Peterson recalls voting in 1981 to throw out the conviction of a condemned man.

Even though he - like a strong majority in Oregon - supports the death penalty, Peterson knew his job was to uphold the law, not to appease public sentiment.

Now retired and teaching at the Willamette University College of Law, Peterson says he opposes Ballot Measure 21 in the November election because it presumes that the No. 1 constituent of a judge is the voter.

"The judge's constituent is not any voter. The judge's constituent is the law," he says. "I don't think any judge should be kicked out of office for upholding the law."

MEASURE 21: Adds "none of the above" to judicial election ballots

What it does: Amends constitution to also list "none of the above" as a choice in judicial elections. If no candidate gets more votes than "none of the above," additional elections are conducted until one does.

Cost to taxpayers: No financial effect foreseeable.

Supporters: Political activists who want more competition for judicial seats.

Arguments for: Would give voters a tool to express displeasure with incumbent judges; would force judges to better represent views of voters.

Campaign contact: None of the Above Committee. Phone [phone].

Opponents: Oregon State Bar, four former governors and Gov. John Kitzhaber, American Civil Liberties Union, others.

Arguments against: Measure is based on incorrect premise that judges represent voters when their real task is to uphold the law. Would delay filling judicial posts, further slow down the justice system

Campaign contact: Coalition to Defeat Constitutional Amendments 21 & 22. Phone [phone].