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Thursday, March 6, 2003

Eve of destruction

The Beaver State is in trouble, and I mean real trouble.

Its court system is falling apart.

Remember what was said in your eighth grade civics course: Without three independent branches of government, the American Way won't last. "Checks and balances" are essential to the functioning of a democratic republic -- sound familiar?

In Oregon, the phrase may soon become a historical footnote. Consider the three different sets of threats to Oregon's judicial branch, all now rearing their ugly heads at the same time:

1. Starvation for funds. The Oregon courts are broke. They've laid off several dozen workers in the last year, and attrition accounts for dozens of additional lost positions. The county courthouses throughout the state are now closed every Friday for lack of funds. Courts are refusing to hear cases against those charged with property misdemeanors, because they don't have the resources to process the cases. That's probably o.k., because most county prosecutors don't have staff to handle the cases, either. And funds to pay lawyers to represent the poor in criminal cases was cut off, and then reinstated at a puny level.

I kid you not: If you're busted for burglary, shoplifting, car prowling, or prostitution in Oregon today, you will be arrested and released. Your first court date will be July 1 (when the next budget year begins), or later. That's four months from now. It sounds like science fiction, but it's the unfortunate reality.

The funding picture may change come the new state fiscal year that starts on July 1, but don't count on it. The outlook for the two-year budget cycle that begins on that date is not good. Four-day-a-week trial courts and amnesty for thieves and prostitutes may become permanent fixtures in Oregon.

2. Issue-oriented, political campaigns for judgeships. Oregon is one of 39 or so states in which judges have to run for re-election. Their terms are for only six years, not for life as they are in the federal courts. Current Oregon rules forbid judicial candidates from running for office based on promises of how they will rule on particular issues. The idea is that judges should be elected on the basis of their character, intellect, and integrity, and not financed and promoted by special interests looking for favors from the bench.

All that is about to change. The U.S. Supreme Court just last June struck down Minnesota's rule that limits what judicial candidates may say during their election campaigns. By a vote of 5-4, the High Court said the state's rule impermissibly restricted the candidates' rights to free speech. That rule banned judicial candidates from announcing their views on political and legal issues likely to come before their courts.

The Supreme Court ruling may sound good at first, but it isn't. The idea of having three branches of government is to have them balance each other off. If judges can run on issues, they will become nothing more than another legislature, jumping at every gyration in the opinion polls. Electing judges at all is a risky business. The Founding Fathers knew this, which is why federal judges -- including the U.S. Supreme Court justices -- are never subjected to a popular election, the way they are in most states. Allowing candidates for the bench to make promises to voters about how they will rule will be fatal to the whole checks-and-balances system.

The Supreme Court's dimwittedness on this issue is nothing new. Its controversial 1976 decision that campaign contributions are "speech" protected by the First Amendment has led to the intractable campaign finance mess that we face as a nation today. And under the Supreme Court's jurisprudence, there is no way out. Money talks in America, and its right to do so is guaranteed by the Court's reading of the U.S. Constitution.

Now the special interests also have been given a constitutional right to run candidates for judgeships who will publicly bow to the campaign donors' wishes. How unwise. If you thought previous Oregon judicial elections have produced some bad results, wait until you see what happens under the new Supreme Court decision. Imagine a State Supreme Court with seven Ed Fadeleys on it. It will be here within a decade or two.

3. The constant drone of anti-judiciary ballot measures. Last fall voters statewide rejected two ballot measures that would have hurt the state's judicial system pretty badly. One would have required that all candidates in judicial elections run against "none of the above," and if "none" won, the judicial position would remain vacant unless and until someone eventually beat "none" at the polls. The other measure, less pernicious but still highly disruptive, would have required the appeals court judges in Oregon to be elected by district. For the first time, every region of the state would be legally guaranteed to get a State Supreme Court justice, even in eras in which the most qualified candidates for the job might hail from elsewhere. "None of the above" was defeated pretty handily, but the districting almost passed (and probably would have if its companion measure had not dragged it down).

The campaigns for these ballot propositions were particularly nasty. Proponents of the measures, which were largely bankrolled by one rich, angry right-winger, pulled no punches in attacking the state's judges. They blamed them for all kinds of societal ills, including decisions made by federal judges regarding the Pledge of Allegiance and Klamath Basin water rights. The Oregon jurists, of course, were not organized, wealthy or brazen enough to buy ad time in their own defense. And although the state's lawyer organizations opposed the ballot measures, they didn't make much of a splash. Many attorneys are afraid to speak out in ways that might alienate their clients.

Unfortunately, the bad ballot measures will be back. For example, Sen. Ted Ferrioli, R-John Day and already nominated by me for Nitwit of the Year honors, will apparently push another districting measure onto the ballot, and who knows? Perhaps this time it will pass. And we probably haven't heard the last of "none of the above," either, not to mention other ill-advised ballot measures to which voters are likely to be subjected regarding the state's justice system.

The clear thrust of these measures has been to destabilize the courts and politicize judicial elections, and combined with the U.S. Supreme Court decision, they are as dangerous as dynamite.

In sum, it doesn't look good for the judicial branch in our fine state unless the average person gets moved off his or her couch, and soon. If we want democracy here, we need to (a) push for better funding for the courts; (b) reward judicial candidates who take the high road in campaigns, and punish those who run on particular issues; and (c) fight the ballot measures that will continue to threaten the vitality of the judicial system.

The courts of Oregon have been functioning just fine until now, and they certainly don't need these horrible changes. Quite the contrary.

Can I get a witness?

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