Should judges answer to law or the people?

Byline: Bill Bishop The Register-Guard

E l e c t i o n 2 0 0 6

A constitutional amendment that Oregon voters rejected with a scant 50.6 percent majority in 2002 is back on the ballot as Measure 40, a constitutional amendment requiring that the state's high court judges be elected by geographic district.

Oregon has 10 judges on the Court of Appeals and seven justices on the Supreme Court. All serve six-year terms. But, proponents note, only one of them lives outside the populous Willamette Valley.

Proponents argue that the change would restore the state's original constitutional requirement for the courts, would ensure the high courts consider the varied perspectives of the state, and would help voters feel more connected to their courts.

Opponents say making geography a top credential is a poor way to find the most qualified legal minds to serve on the state's most important courts, and that judges are bound to follow the law, not to please a constituency or represent an area.

The two sides are separated by a deep philosophical and political chasm.

Leading the campaign is the Our Courts PAC and the Judicial Integrity Coalition, a group tightly aligned with the politically conservative FreedomWorks, based in Washington, D.C., which advocates nationwide for small government, reduced taxes and Christian values.

The Our Courts Committee has plowed more than $300,000 into the campaign, most of it coming from the Oregon Family Farm Association and the Judicial Integrity Coalition.

Opponents - including five Supreme Court justices, six Appeals Court judges, the Multnomah Bar Association and the Oregon Trial Lawyers Association - have raised about $58,000, according to campaign finance reports.

Proponents say the measure is all about power.

"I still see this as a kind of war between the political elite, who want to keep their power to appoint judges, and those of us who trust the people," says Kevin Mannix, a former gubernatorial candidate and spokesman for proponents. He says 85 percent of circuit and appeals court judges are appointed by the governor.

"The reality is, politics permeates the judicial selection process," Mannix says. "The only question is what kind of politics it's going to be."

Opponents claim that the measure would make judges vulnerable to campaign attacks from special interests funded by out-of-state groups. But Mannix says the proposal would cut out the skyrocketing cost of statewide judicial campaigns and make it cheaper to defend good judges from special interest attacks in their home districts.

Having judges elected by district would allow voters to know their candidates and to better identify with their judges, Mannix says.

The measure would divide the state into five Court of Appeals districts, each with two judges, and into seven Supreme Court districts, each with one justice. The Legislature would be free to change district boundaries and nothing would prevent a judge from being removed if the lines were redrawn and the judge did not move into the new district he is assigned to represent.

Eight states elect Supreme Court justices by district, while 42 elect them statewide. Seventeen states elect appellate judges by district, while 24 elect them statewide. Nine states have no appeals court, Mannix says.

However, former Oregon Supreme Court Chief Justice Edwin Peterson says the measure is a solution looking for a problem. No one claims that Oregon's high courts are unfair, inefficient or politically aligned, he says.

Peterson says the measure may inject enough political pressure to interfere with the objectivity of a judge under certain circumstances.

But he says he is absolutely certain that the measure will make the courts less efficient.

If passed, the Legislature would draw the district lines and appoint each judge to a district. Judges presently on the bench would have to move to their appointed district in order to run for re-election. Once assigned to districts, judges would no longer able to work in close proximity to refine their views and reach consensus on cases, he says.

"I can't think of the number of times in my life when a group decision proved better than a decision I would have made working on my own," Peterson says.

Peterson says the measure ignores the fundamental function of the courts - to uphold the law regardless of public opinion. "The judge's constituent is not any voter. The judge's constituent is the law. Judges shouldn't have to be looking over their shoulder when they're trying to decide an issue."

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MEASURE 40 Issue: Constitutional amendment to require Supreme Court and Court of Appeals judges be elected by geographic area instead of current practice of statewide elections; requires judges to live in their district. The Legislature would create the districts, based on population, and reapportion them as needed. Cost: State costs could range up to $1.5 million per biennium. No effect on local budgets. No impact on taxes. More information: Major proponent is FreedomWorks: www.freedomworks.org. Several groups oppose, including League of Women Voters: www.lwvor.org/homearticle.htm.