How Do We Select Judges?

By Hunter Emerick

By all accounts, the Oregon Court of Appeals is one of the busiest intermediate appellate courts in the country. Almost any party aggrieved by a decision issued by an Oregon state jury, trial judge or administrative law judge has an absolute right to appeal the decision to the Oregon Court of Appeals. Over a ten year period, the Oregon Court of Appeals received between 3,200 and 4,100 appeals each year.

Recognition of this workload resulted in passage by the 2012 Oregon Legislature of HB 4026, which increased the number of judicial seats on the Oregon Court of Appeals from ten to thirteen. The positions are to be filled by October 1, 2013. It appears that, despite the fiscal challenges which currently face the State, the 2013 Oregon Legislature will appropriate the funds necessary to staff these three new appellate judicial positions. Curiously, in approving the new appellate positions, the Oregon Legislature specified that the new positions were to be filled initially through appointment by the Governor of the State of Oregon. The newly appointed judges, however, will be required to run for election at the next general statewide election.

Currently, the Oregon Constitution and statutes state that a Court of Appeals judge holds that office for a six year term and until a successor is elected and qualified. If a judge allows his or her term on the appellate court to expire, or if the judge is unsuccessful in running for re-election, the candidate elected in a statewide election will succeed to the office. Only if a judge resigns his or her position midterm, will that position be filled through appointment by the Governor of the State of Oregon. With three new appellate judicial positions being created by the Legislature, the Legislature’s decision to allow those positions to be filled initially by appointment, rather than by the ballot box, deserves attention.

Many Oregonians believe that the State’s judicial positions are filled by election. Although that is generally true, the appointment process is being used more frequently to fill judicial seats which become vacant midterm. For example, in Marion County, the last 5 trial judge vacancies were all filled by appointment, except for one position. The last 4 vacancies on the Court of Appeals were filled by gubernatorial appointments, except for one position. The American Judicature Society reports that approximately 85 percent of Oregon judges have first been appointed, rather than elected. Once appointed, the new judge running in the next general election is an incumbent and can use the description “Judge” before their name on the ballot. Understandably, the vast majority of these newly appointed judges are successful in keeping their job in the following election.

As currently practiced, the appointment process is triggered by a midterm resignation. Typically, the Governor’s office announces the vacancy and requests all interested and qualified candidates to submit an application. The application is then reviewed by the Governor’s staff and, in some cases, by a local or state Bar Association. Historically, some of the Bar Associations ranked or expressed preferences between the candidates. More recently, however, the Bar Associations only state whether the candidate is qualified. I have served on both county and state Bar committees conducting these reviews. The committee members are drawn from many different practice areas.

The Governor’s Office, however, is not required to follow the Bar Associations’ recommendations or comments concerning the candidates. In fact, midterm judicial appointments are solely within the sound discretion of the Governor’s Office. Although political affiliation is not formally considered in judicial appointments, the fact remains that Oregon has not had a Republican Governor since Vic Atiyeh in 1987. Unlike the federal system, the Oregon Legislature has no formal input into the selection of state appellate or trial judges.

There is a growing unease with Oregon’s system of electing judges. Running statewide campaigns is becoming extremely expensive. Federal and state constitutions have not placed any significant limits on the fundraising for or spending in judicial races. Other states have seen their judicial elections inundated with outside money and special interest groups. Recently, incumbent judges in both Wisconsin and Iowa lost elections to opponents funded largely with out-of-state money. These campaigns were focused on special interest issues, not on the judges’ qualifications or competency. Although Oregon’s judicial elections have not yet experienced similar incursions, many commentators feel as though it is only a matter of time.

Understandably, citizens believe significant campaign contributions to a candidate may affect the judge’s impartiality on the bench. An independent judiciary is a critical component of the checks and balances necessary to hold a representative democracy accountable to the rule of law. However, Oregonians have always had an independent streak and are wary of intellectual or political elites. Oregon’s rather unique initiative process is a ready example of our State’s desire to protect direct democracy from a non-responsive Legislature. Clearly, elections are a very direct manner to hold judges accountable to the electorate.

Partially in response to these concerns, former Chief Justice Paul De Muniz is leading a Work Group on Appellate Judicial Selection and Retention in Oregon. The Work Group is supported by the Oregon Law Commission. The Commission is housed at the Willamette University College of Law located in Salem, Oregon. The purpose of the Work Group is to make recommendations to the Oregon Legislature as to the judicial selection process. Many formulations are being considered by the Work Group. Among them is a judicial nominations commission comprised of diverse and bipartisan members of the public and the Bar that would review the candidates’ backgrounds and qualifications, interview the candidates and recommend the best candidates to the Governor. However, the Governor would make the selection, presumably from the list submitted by the commission, in his or her sole discretion. After appointment, the Judge would later run in a retention election or, in the alternative, be reconsidered by the commission for retention as a judge. This group is doing important work which could very well change the Oregon judiciary for years to come. If you are interested in following this Work Group, more information can be found at www.willamette.edu/wucl/centers/olc/groups/2011-2013/js/index.html.

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