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Two ballot initiatives before Oregon voters, driven by anger against appellate rulings, would radically change the way judges are chosen in the state. The Oregon State Bar opposes both. The more extreme is Measure 21, which would amend the state constitution to provide for a “none of the above” option in judicial elections so that a candidate running unopposed could be defeated. It would also require judicial vacancies to be filled by election rather than appointment by the governor. Nevada has a “none of the above” option in some elections, but the result is nonbinding. Don McIntire, president of Taxpayer Association of Oregon and a chief sponsor of Measure 21, said he petitioned for it because judges “think more of their own power than the power of the people … . They have thrown out a number of voter-approved initiatives. “ He cited an Oct. 4 decision in League of Oregon Cities v. Oregon, Nos. S48450 and S48451, in which the Oregon Supreme Court struck down Measure 7, a ballot initiative passed in 2000 requiring governments to compensate private real property owners for the cost of “restrictive” regulations that reduce the value of their real property. The court held that the initiative violated a section of the Oregon Constitution requiring that separate constitutional amendments be voted on separately. That decision relied on the other example he cited, a 1998 decision in Armatta v. Kitzhaber, 327 Ore. 250, in which the court struck down a crime victims’ rights initiative because it too contained more than one constitutional amendment. “We are supposed to vote for judges, but de facto we don’t,” McIntire said. He said that typically, a judge about to retire leaves early. The governor then appoints a replacement, who becomes the incumbent, and “no lawyers ever challenge an incumbent.” He said that in the vast majority of judicial elections, incumbent judges run unopposed. Under Measure 21, elections to fill vacancies caused by early retirement, or in the event that “none of the above” wins, would be held in May and November until the position is filled. McIntire said that this system would not create the possibility of case backlogs — contrary to what opponents of the measure have argued — because under a different provision of the constitution than the one to be amended, the governor could appoint a pro tem judge to fill a vacancy — but that judge would not be the incumbent. The second measure, No. 22, would amend the state constitution to require appellate judges to be elected by geographic district rather than statewide. One state supreme court justice would be elected from each of seven districts. For the Court of Appeals, which has 10 judges, two judges would be elected from each of five districts. Steve Doell, president of Crime Victims United of Oregon and a chief sponsor of Measure 22, said that nine or 10 other states elect their supreme court justices by district. A CALL FOR DIVERSITY “We need diversity on the courts, philosophical, ideological and geographical,” Doell said, noting that of 17 appellate judges, “only one is from east of the mountains, two are from Eugene and the other 14 are from Portland or Salem. “Judges make outlandish opinions, outside the law, based on pure politics.” He said that in 2000 the Oregon high court released a convicted murderer “on a technicality.” In that case, Oregon v. Harberts, 331 Ore. 72, the court ruled that the state’s five-year delay in bringing the defendant to trial violated the state constitution’s speedy-trial provision. On Oct. 5, the Oregon State Bar’s House of Delegates voted almost unanimously to oppose both measures. Angel Lopez, the State Bar’s president, said that the current hybrid system of judicial election and selection helps ensure that the best people get on the bench. He said that Measure 21′s “none of the above” option would “open the floodgates to individuals and interest groups, who, because judges ruled against them on an issue,” want to engage in a “last-minute smear campaign.” Lopez said that the State Bar is also strongly opposed to Measure 22, which is “more deceptive than ‘none of the above.’ On its face, why not have different districts represented by judges? Then you step back and think, who are the best qualified to be appellate judges, and those are the people who live closer to the courts, Salem in this case.” He said that the proponents of the measures were seeking to get judges who are sympathetic to their conservative positions on the bench. McIntire said his organization had plans to run both radio and television ads. Kathleen Sullivan, campaign manager for the Coalition to Defeat Constitutional Amendments 21 and 22, said that her organization was planning television ads. A poll conducted in August for the coalition indicated that Measure 21 could go either way. It found that a plurality of 44 percent favored Measure 22.

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