Oregon Measure 40

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Most of the initiatives, or measures, that voters face from year to year are an enigma to the majority of people faced with choosing whether or not to enact them. They have origins in good intentions that start with some gripe or idea to make government better or more responsive to the people, or perhaps protect people a bit more from government. However, those good intentions end up morphed into language only suited for law books, which confuses the heck out of all of us, and in the end you can’t really tell whether a measure will enact the good it purports or not.
This is made doubly confusing by the litany of arguments for and against that litter the voter’s guide that comes out a month before each election. As I was perusing this year’s guide (2006 for archive searching purposes) the one thing that really stood out to me was the terrible arguments made by both sides of the arguments of many of the ballot measures. A friend of mine suggested that perhaps it was amateur hour down in Salem. Perhaps that’s the case in all elections. However, unfortunately it’s left up to us to mire through the resulting arguments and figure out what’s the best course of action.

My first impressions of Measure 40, which sets up voting districts for each of the 10 appeals court and 7 Supreme court justices in Oregon, was that it would set up a situation where you might not get as good a justice as would be possible if you were selecting from the pool of all justices in the state, and you would be doing so just for the sake of having some guy from Baker or Medford on the bench in Salem. The problem with this, as I see it is the motivation of the proponents of the measure. Allow me to go through the arguments in favor of the initiative.

Note: Once again, I don’t think anyone has a gripe with the explanatory statement, so if you are not fond of wading through the text of the measure, don’t bother.

In Favor

OK, like many ballot measures there is just a few sources for the arguments, or just one person or organization paying for all of them, so when you look at a measure like this one, note that someone named Russ Walker paid for almost all the arguments in favor. He also is usually a member of the team writing the explanatory statement as well. It’s hard to know when the opinions are his alone or the work of others that are sometimes listed as the true writers of the opinion, but you make the call there.

“By requiring our appellate judges to be elected by district, Ballot Measure 40 will guarantee that our courts will reflect the broad range of viewpoints and opinions which make Oregon so special and unique.”

As a corollary to this, you get it stated this way too:

“Oregon's appellate courts routinely make new laws, and yet only a small segment of Oregon is represented on these courts. Ballot Measure 40 will guarantee a diversity of views on the courts that have the biggest impacts on our lives, the appellate courts.”

As you can see the main thrust here is going to be that there is a certain constituency within the state that feels like the decisions made by the state courts are fairly ideologically one sided, and that the culprit here is the liberal Willamette valley dominating the bench. The proponents feel like we need a wider range of viewpoints judging cases in Oregon. If you don’t think that this is a Conservative vs. Liberal or Republican vs. Democrat issue, then take a gander at who supports this measure and who opposes it.

The other sentiment behind this, although to a lesser extent, is that a wider range of experience can help a judge in areas where the issue is more obscure. Knowing the details of farming and rural issues might sometimes make the facts of a case more clear to the panel of judges. I think this is valid, but how often does this happen, and when it does shouldn’t it really be the job of the counsel arguing the case to present these facts to judges that otherwise wouldn’t understand the issue. There’s always going to be something judges don’t understand about the issues they are judging.

The place where I feel this falls apart is the “diversity of views” argument. Ironically, the liberals opposed to this measure argue that judges should be impartial arbiters of the law and not make decisions based on their viewpoints on issues. It’s been my beef for a long time that judges tend to side with their ideal of the world instead of just apply the law as it’s written. Judges do this all the time, and it’s the reason this measure is here in the first place. But the answer to this is not simply to try and put “your boy” on the bench instead of trying to solve the problem of judges who have an activist judicial philosophy.

Another way of stating the above is that the peoples of this state should be “represented” equally, and their issues should be represented on the bench like they are in congress. You can only take this equivalency so far, though. Once again, judges aren’t in Salem (or Washington) in order to solve local issues but to try cases that affect all Oregonians. Which means knowing and applying state law, which is the same whether you live in Bandon or Portland.

Another argument for the measure is that the judges on the appeals or supreme court are in trial lawyer’s pockets.

“The members of these special interest lawyer associations have invested over $400,000 in the judges currently sitting on the bench, and Ballot Measure 40 threatens their investment.”

This might be the case (pun not intended), and if there is a chance the judges in Salem are beholden to certain trial lawyer organizations, or if they tend to vote in their favor knowing that their money helps keep them on the bench, then there truly is a serious problem. But this isn’t the way to solve it. You think changing the voting method is going to keep special interest money out of the process?

Proponents cite that measure 40 would help “voters know the judges they elect and to understand the character of the person they put in office.” Really. Do we know the character of ANYONE we put into office with certainty? The argument asks you to name any one or two appeals court justices off the top of your head, as proof that we don’t “know our justices” now. But do you really think separating this into districts is going to change that? How many people could name their state representative off the top of their head? Probably not many.

If anyone is reading this instead of the ballot guide, I’m saving you from a litany of stupidity, such as the eight opinions that basically say “if you live in such and such a county, you are not represented” yadda yadda. Or the ones that basically accuse the Oregon judicial election process of being Stalinist.

Opposed

The first thing that frightened me when I figured that I didn’t like this bill was the list of people who also opposed this bill. The ACLU, Democratic candidates, AFSCME, the League of Women Voters, Oregon Education Association, AFL-CIO and Planned Parenthood. Holy Cow! I’m hardly ever seeing eye to eye with all these groups at the same time. But I do suppose it happens.

Many of these arguments mirror some things that I said above about state level judges needing to apply the state law, not local law, and judges shouldn’t bring their political views into the court room. Which I would agree with. However I really don’t think that the arguments presented here are all that altruistic, considering the people and organizations writing opinions in opposition are probably just happy as punch with the results most of the time, they have no reason to change how things are done in Salem, and in the state. I would disagree, but I’ll explain later what I think of all this.

“CONSTITUTIONAL AMENDMENT 40 IS BASED ON THE FLAWED IDEA THAT THE LAW SHOULD BE DIFFERENT DEPENDING ON WHERE A PERSON LIVES.”

Well, no, that’s now what it’s about, and if they really cared about considering what the proponents are saying they wouldn’t mislead voters this way. It’s one thing to say that personal views shouldn’t be brought into the court room, and another to say that the opposition thinks the actual law should be different.

“Constitutional Amendment 40 would force MOST of the judges of the Court of Appeals and the Supreme Court to live outside Salem where the appellate courts are located. Measure 40 requires each elected judge remain a resident of the district for the entire term of office. Oregon taxpayers would have to foot the bill for the gross inefficiencies and extra costs that would result -- for no good purpose.”

This is an OK argument. On the one hand it’s not a great argument because legislators do this all the time. They have to rent apartments or get second homes in Salem because they spend much of their time there. However, I think the restrictions on residency might be a bit much, and might make the transition for an elected judge difficult, but won't stop jurists making just over 6 figures from living in Salem for the duration of their term while keeping residence in their hometown.

“Constitutional Amendment 40 would limit our ability to choose the most qualified judges from across the state to serve on the Supreme and Appellate Courts.”

This isn’t a bad argument. It’s a little condescending, which the proponents point out more than a few times, but consider that most of the appeals court lawyers live and work in the Portland and Salem area, and the evidence will be that the experience is in the valley. Not withstanding that most of the states law schools are in the Portland and Salem area as well (although I’m not sure how much that plays in the mix).

This is not to say that there’s aren’t some really good judges in east Oregon, some of who have served for years and decades. The other side of things is that, considering this is an electoral process and you have to want to be elected to the bench, perhaps the best candidates for the Supreme Court and Appeals court aren’t even on the ballot from year to year anyway. However, it’s still not a false statement to say that most of the best candidates are probably in the valley.

Which is what they’re saying, if you didn’t get the hint.

Let me just say at this point that I don’t think the opposition to Measure 40 is being altruistic here (just acting like it). Do you think for a moment that they wouldn’t be making the same arguments as the proponents if the majority of state level jurists were conservative and the best candidates (for some reason) came from more conservative eastern Oregon and made decisions that conservatives agreed with more often? I wonder.

“Constitutional Amendment 40 would radically change all that, instead electing judges in a way that would be more political, and more open to the influence of special interests.”

Really? More than they are now? Frankly I think that electing judges at all is to put them into a political environment at the influence of special interests. That’s what the proponents of the measure are arguing too.

I’m not even going to touch on the stupid scare tactics and the ludicrous equivalency baiting, like the faux job interview by SEIU local 503.

But, while I sympathize with the anger over the ideology of some of the court’s decisions (and there haven’t been that many that have irked me), let me say that I don’t think this is the answer. This just strikes me as turning the tables in the political battle for ideological control of the bench.

I have a better solution than this measure OR keeping the status quo. Why not model the state’s political triumvirate after the federal structure? Have the state level court appointments be made by the governor and have terms that would have governors choosing one or two for each term they are in office. I also think that the Senate should be structured like the Federal model too, in that the districts be more geographically evenly spread over the state, so that the rural districts have a fair shot at influencing state policy, and the Senate would have to ratify Governor’s appointments to the bench.

I know it doesn’t completely take politics out of it all. But this way the judges aren’t wrapped up in having to satisfy some special interest just to maintain their job.

Note: By the way, the idea of limits on Supreme court appointments so that each President has the opportunity to choose two per term has been floated on the federal level by many people, so I didn’t think that one up myself.

Measure 40: NO