Initiatives Attack Independence of
Oregon Judicial Branch
Vote No on Measures 21 and 22
By DAVID FIDANQUE
While there are only two initiatives on this November's ballot opposed by the Oregon ACLU, they are both very dangerous attacks on the independence of the judiciary. Unfortunately, Measure 21 and Measure 22 both will seem appealing at first glance to many voters. Our Voter's Pamphlet statements help clarify the ACLU of Oregon's opposition to these measures. For a more in depth analysis of our disagreements, continue reading below.
Measure 21 would add "None of the Above" as an option in all judicial elections and Measure 22 would require state appellate court judges to be elected by district.
Both ballot measures have been bankrolled by ultra-conservative businessman Loren Parks and are a reaction to court decisions that have overturned earlier initiatives he supported financially. Among those was ACLUâs successful challenge of Ballot Measure 40, the so-called "crime victims rights" measure which violated the Oregon Constitutionâs requirement that multiple amendments to the Constitution be voted on separately.
The wisdom of that 1998 Oregon Supreme Court decision, Armatta v. Kitzhaber, soon became clear. When the Legislature broke up the different components of Measure 40 and referred them to the ballot as seven separate measures, only four were approved by voters. The "separate vote" requirement is only one of several procedural constitutional guarantees related to the initiative that ACLU has aggressively sought to enforce over the past decade.
We are still seeking to breath life into other provisions that: 1) prevent wholesale "revisions" of the Constitution by initiative, and 2) require initiatives to contain the "whole text" of laws and constitutional provisions they seek to amend. All of these procedural protections are designed to help voters understand the changes they are being asked to approve and are important safeguards for civil liberties.
While Measures 21 and 22 have been spawned out of legal battles over the proper scope of the initiative process, they would seriously undermine the independence of the judicial branch and its ability to protect individuals from the tyranny of the majority.
Measure 21 would force all judges to raise campaign war chests by adding "None of the Above" as an official candidate in judicial races. Every judicial race would be a contested election÷even if there was only one person running. Needless to say, judges would be even more reluctant to enforce provisions of the Bill of Rights when they thought such decisions might be unpopular.
Measure 21 would also disrupt the justice system in other ways by eliminating the power of the Governor to fill judicial vacancies and requiring repeated elections until a real person was able to outpoll "None of the Above."
This measure will result in expensive special elections and slow down an already overloaded judiciary. Justice delayed can be justice denied.
Measure 22 is even more insidious because it is so appealing at face value. It would amend the Constitution to require state appellate judges to be elected by district rather than statewide.
While it is appropriate to elect state legislators by districts, appellate court judges have a responsibility to interpret the laws and state constitution for the entire state÷rather than representing a discreet district and solely the interests of that district.
Ironically, Measure 22 would take away the right of voters to have a say in the election of all state appellate court judges. Today, we can vote for all seven justices of the Oregon Supreme Court and all ten judges of the Oregon Court of Appeals. If Measure 22 passes, each voter could only vote for one Supreme Court justice and two Oregon Court of Appeals judges.
Measure 22 would also make it more expensive for judges to serve because it would require them to maintain a residence in their district during their judicial service. Since both Oregon appellate courts are in Salem, that would mean judges from districts outside the Willamette valley would have to maintain two homes.
We should always elect the most qualified judges no matter where they grew up or live at the time of their election. We donât want judges to look over their shoulder every time that they vote on a case÷acting like legislators who want to appeal to special interests on every issue.
Our judicial branch is working well in Oregon. Measures 21 & 22 are unnecessary and dangerous attacks on the independence of the judiciary and should be defeated.