Measure 40: Why are Supreme Court justices elected statewide?

Russell Sadler

Ballot Measure 40 requires judges of the Oregon Supreme Court and Court of Appeals to be elected from geographic judicial districts like legislators, instead of statewide like such officeholders as the Governor, Secretary of State and State Treasurer.

Oregon voters rejected a similar initiative in 2000. The same special interests who pushed the idea then are back again, funded by national conservative organizations determined to pack the state judicial system with the same sort of “conservative” activist judges they have been packing the federal courts with since the 1980s.

To understand the problem Measure 40 creates we need a little background taught to all first year law students.

Trial courts try the facts -- did someone actually do what they are accused of doing? What is the evidence? What are the facts? Did it actually happen that way?

Appellate courts try the law. Did the judge interpret the law correctly. Did the trial follow accepted procedure? Did the judge instruct the jury, if there was one, correctly?

Trial courts do business in a nearby county seat. Oregon’s 36 counties are organized into 27 judicial districts. Trial judges are elected locally to serve the people of that district and live in the district where their court is located.

Decisions of these trial judges are appealed to the Court of Appeals and the Oregon Supreme Court. They are collegial bodies serving all Oregonians. The judges are elected as statewide officeholders to represent the whole state. They do their daily business at the seat of governor -- Salem. So appellate judges typically live either in Salem or within commuting distance -- Portland and its suburbs or Eugene. Measure 40 forces appellate judges to live in their districts in Eastern, Southern and coastal Oregon. Yet the judges would have to really live in Salem where they do their daily work This is a real financial burden, especially for younger judges with families.

At statehood in 1859, Oregon’s Supreme Court judges were chosen from districts. Between 1840 and 1860 about 54,000 people migrated to Oregon by ship or on the Oregon Trail. Most of them settled in the Willamette Valley. With such a sparse population, there was no need for full time appellate judges. Oregon’s Supreme Court judges “rode circuit” for much of the year, conducting trials in various county seats. A couple of months a year, the Supreme Court assembled in Salem to hear appeals.

As the state grew and more people sought judicial resolutions of their disputes, the Legislature created trial courts, elected to represent the districts where they lived. Supreme Court judges became statewide elected officials representing the whole state and met at the seat of government in Salem. The seven-member Supreme Court was a hardworking appellate court. The Legislature did not create an intermediate Court of Appeals to lighten the Supreme Court’s workload until the 1970s.

There is another reason that appellate judges tend to come from Salem, Portland or Eugene. Appellate law is a specialty. The trial lawyers conservatives love to hate rarely conduct their own appeals. Trial lawyers, like trial judges, try the facts. Trial lawyers hire specialists to conduct their appeals. There are two kinds of appellate lawyers. Some are sole practitioners who specialize in appellate work. They tend to have their offices in Salem. For example, former Secretary of State Norma Paulus specialized in appellate law before she ran for statewide office. The other appellate lawyers are in big law firms that can afford the luxury of specialists. The only cities in Oregon large enough to support law firms large enough to have specialists in appellate law are Portland and Eugene. Appellate judges typically come from this pool of appellate lawyers.

So why are supporters of Measure 40 so eager to replace a system that elects trial judges from district where they conduct their trials and elects appellate judges statewide to represent all of Oregon and encourage the law to speak with one voice?

Privately, they will tell you the present system makes Oregon appellate courts too “liberal.” That is ideological nonsense. The best to be said for Oregon’s appellate courts is that they are competent and orthodox. And competent orthodoxy is likely to remain the standard of Oregon’s judiciary as long as the present system for choosing judges remains intact. Measure 40 is a stealth plan by national conservative ideologues to smuggle members of the radically conservative Federalist Society -- like Supreme Court Justice Anton Scalia -- into Oregon's orthodox judiciary.

The national conservative ideologues bankrolling Measure 40 hope that by choosing Oregon’s appellate court judges by districts smaller than the state as a whole, it will be easier to elect conservative -- read revisionist Federalist Society -- judges.

Oregon voters rejected this silly stealth scheme in 2000 and they ought to do it again this November.

  • askquestions1st (unverified)

    Excellent commentary Russell. Totally agree with you on a "NO" vote on 40.

    My only question for readers, echoed in another thread a few days ago, and which in no way is a criticism of anything you write here, is what possible sense is there in making Supreme Court, or any appellate court judge for that matter, a politician in the first place? If we don't want them to serve for life, fine, make the position an appointed one with a term of 10 years or something like that.

  • KISS (unverified)

    " make the position an appointed one with a term of 10 years or something like that." Interesting concept. I too agree that Russell's article is very erudite. If only judges could be picked that are neutral, maybe a panel could be the choosers. Yup, NO on 40.

  • Wesley Charles (unverified)

    "[appellate judges] do their daily business at the seat of governor -- Salem."

    That presumably unintentional typo unfortunately illustrates what I believe is the biggest frustration underlying this measure.

    Because Republicans cannot live in Mahonia Hall, the judicial branch tends to fill up with gubernatorial appointees selected by a Democratic governor, often upon the recommendation of the Portland-dominated Oregon Bar Association.

    The selectively early retirement of justice R. William Riggs is a perfect case in point. Rather than fulfill his complete term, Riggs "retired" early, paving the way for Kulo to appoint Eugene labor lawyer Martha Lee Walters to the state's highest court, where she can now run for re-election as an "incumbent."

    Riggs' retirement and replacement may actually illustrate Russell's inadvertent goof, that perhaps our state's highest judges in fact "do their daily business at the seat of [the] governor."

    • Wes
  • Josh (unverified)

    If you beleive in democracy and are a populist as Oregon's founders were, then it makes sense to elect judges. You want them GENERALLY accountable for their conduct but not SPECIFICALLY accountable for particular decisions. Measure 40 may well be bankrolled by conservatives with an agenda but they will likely be disappointed if it passes. 1) The way the state will be divided up will be very similar to congressional districts meaning that "conservatives and liberals" - a dicey term when talking about the judicial system - will be represented about the same way our congressional delegation is 4 to 1. 2) Since it would be easier and cheaper to run (a state-wide campaign is so expensive it is almost unheard of of there to be a genuine race, as there is this time between two well-qualified candidates (Roberts and Linder) we would likely see much more true diversity on the court.

    The No on 40 campaign says "You get to elect 17 judges now and if this passes you'll only be able to elect 3." Well name two appellate court judges. Okay name ONE. Don't worry. Most lawyers can't either.

    The only argument that flies against 40 is the requirement that they maintain a residence in their district. Oregon's judges - appeals and trial level - are shamefully underpaid - Oregon is 49th in the nation. If we want good people to seek and stay on the bench we have to do better than compete with what a first round pick of FIRST YEAR associates het as Miller, Nash or Stoel, Rives in Portland.

  • Amanda (unverified)

    Wes, that may be true, but according to the state bar profiles of the 8 (if I remember correctly) lawyers who threw their hats into the ring when Justice Riggs announced his retirement date, not a one of them was from outside the Willamette Valley. I checked at the time because I was curious in light of M40. I don't think that means that no lawyers outside the valley are ever interested in seeking appointment or election to the high courts, but I do wish people who are for 40 would stop using this retirement as an instance of valley favoritism. Any attorney can put his or her name in the hat. No one from outside the valley did, at least that time. As I have said before: you can't win if you don't play.

    On the Oregon State Bar (I assume that's what you meant) being Portland-dominated, I would be surprised if it was not. Portland is the largest city in the state, with a pretty significant concentration of business, industry, government, and people, which means a pretty significant concentration of lawyers. There's just not a lot of legal work to go around outside the major population centers of the state.

  • BlueNote (unverified)

    Measure 40 should sound familiar. I believe the phrase is "divide and conquer". The Lord's army is having a bit of trouble with Oregon state-wide elections (except for the anti-gay marriage act), but I suspect they are much more confident of some judicial victories outside the Portland / Eugene corridor if they can get Measure 40 approved.

  • Eric (unverified)

    M40 messes with the constitution. Any measure that messes with he consitution gets an automatic NO vote. The constitution is a document that is a blueprint to interperet the law, not be the law in and of itself.

    No on 40.

  • LT (unverified)

    "Because Republicans cannot live in Mahonia Hall..."

    When the GOP nominates someone of the quality of Vic Atiyeh, they will deserve win a Gov. election. But the idea that Ron Saxton deserves to win because it has been so long since they elected a Governor seems to me about as logical as telling someone from St. Louis that the Detroit Tigers "deserve to win the World Series". Same with E. Oregon judges "deserving" to be elected. Isn't that what used to be called Affirmative Action?

    The Tigers won the pennant by working hard. That's the way to get to Mahonia Hall, or on an appellate court.

    I would have supported Jelderks for Supreme Court the year Fadeley and Cook (former legislators) were the top 2 vote getters. But I don't think Measure 40 is the answer.

    Russell once again wrote an excellent column.

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