Out of Control Policy Blog

Property Rights and Judicial Activism in Oregon

The Wall Street Journal's Kimberly Strassel has a great op-ed today using the current legal hubbub over Oregon's Measure 37 to launch a discussion about judicial activism and the need for greater diligence on the part of voters that ultimately decide the makeup of the bench:

    Reformers, take note. There's a big lesson to be learned from this state's ongoing, bare-knuckle fight over property rights. Ballot initiatives are all well and good, but they are only half the equation. First, voters must boot judges who legislate from the bench.

    Oregonians, like many others, have been fighting to force their state government to honor property rights. Like reformers in other states, residents here had seized upon the one tool more powerful than entrenched state politicians: the ballot initiative. In 2000 and again in 2004, voters passed measures to protect landowners from state regulations that reduced their property value.

    Yet nothing has changed. This is because initiatives are only as powerful as the court system lets them be. Two separate judges struck down the property measures on embarrassing legal grounds. And voters can't count on a state Supreme Court that revels in meritless decisions to right things on appeal.

    . . . .

    Oregon judges can operate this way because they have near-foolproof job protection. The state still allows its judges to put an "i" (for "incumbent") next to their names on the ballot, which gives them a huge advantage in elections. Combine this with voters' traditionally apathetic approach to judicial elections, and it is no surprise that no judge in Oregon has lost a re-election for at least a decade, if not longer.

    This may change. Already a local group is collecting signatures to recall Judge James. But more important, voters are pledging to make the judiciary their top priority in upcoming elections. In doing so, they join reformers across the country who in the past year have begun tossing out court incumbents, encouraging real judicial races, and demanding judicial elections be more fair.

    In fact, 39 states hold some form of judicial elections. Good-governance types are already arguing that the new partisan focus on judicial candidates threatens the integrity of the courts, and that may be a debate worth having. But for now, the fact remains that it is voters who are tasked with filling the bench. And to that extent, they have a right to choose candidates who respect the law--and the wishes of citizens.

Full article here.

Leonard Gilroy is Director of Government Reform


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