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|Sadler's Sense: We Need the Constitutional Limits of the Initiative Process
As any first-year law student knows, statutes don’t trump constitutional provisions.
By Russell Sadler
Posted on Dec 9, 2005
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Marion County Circuit Judge Mary Merten James, was surprised when people started congratulating her on a “courageous” decision when she held Ballot Measure 37, the developer compensation initiative, to be unconstitutional. She thought it was a straightforward decision applying the precedents to a rather clear case.
It turns out the aftermath of the decision was anything but straightforward. A recall petition collected the required signatures in a week and now her career as a judge hangs in the balance for the simple act of doing her job.
Judge James is caught in the crosscurrents of events that have been gathering momentum for some time.
Over the last two decades nearly half the measures on the Oregon ballot wound up in the courts.
The reasons for the growing challenges to voter-approved initiatives are complex:
• a growing number of well-financed, national interest groups are unwilling to allow Oregonians their traditional independent, maverick ways. They support or oppose initiatives with their money only if they conform to their national agendas.
• a growing number of Oregon newcomers misunderstand the initiative is limited to exercising the legislative power of government. It does not trump the executive or judicial branches.
• lobbyists are buying their way onto the ballot bypassing the deliberative process of the Legislature for the emotional atmosphere of a media campaign.
• Portland and its suburbs increasingly dominate statewide elections on initiatives and is functionally disenfranchising voters in the rest of the state.
• some “spontaneous” initiatives push the limits of direct democracy in a country where state and federal constitutions guarantee a republican government.
• voter acceptance of decisions made at the polls is declining dramatically because so many disenchanted voters refuse to participate in elections.
* a national effort by Christian Republicans and right-wing conservatives to pack the U.S. Supreme Court by demonizing judges who make decisions they do not like, is trickling down to the decisions of state and local judges. The sponsor of Judge James’ recall, a self-described graphic designer, Tom Steffen, told The Oregonian, that judges' attacks on the Pledge of Allegiance, marriage and prayer were on his mind when James' decision came "screaming off the page at me.”
The Oregon Supreme Court is ruling on the constitutionality of initiatives with increasing frequency because the initiative process -- alone among Oregon’s lawmaking procedures -- lacks the checks and balances to determine or even permit consideration of the constitutionality of a measure before it is enacted.
With an initiative, any interest group hires its own lawyers, drafts its own measure and, if they can buy enough signatures, simply presents it to the voters with whatever advertising claims they think will sell it. Since the early 1980s, when it became legal to pay signature gatherers, a variety of interest groups have used the initiative as a private, parallel system of lawmaking specifically to bypass the checks and balances of the republican form of government. Some of these interest groups have deliberately pushed the constitutional limits of the initiative process.
Measure 37, for example, was a rewrite of Ballot Measure 7, a constitutional amendment struck down by the Oregon Supreme Court because it violated a long-standing requirement that constitutional amendments involve only one subject. So Measure 7 was recast as a statutory initiative to get around this limit. But Measure 37 arguably attempts to trump some other provisions of the Oregon Constitution. And, as any first-year law student knows, statutes don’t trump constitutional provisions.
That is what Judge Merten held. It was not a difficult case.
But there are a growing number of people who are not willing to accept the rule of law if the decision isn’t to their liking.
"All judges in Oregon will be reminded, 'That's right, we work for the people,' " Steffen told The Oregonian. "Public servants go against their employers at their peril."
This is “talk show” populist prattle and a shameless attempt to intimidate other judges.
Judge James will be up for reelection soon enough. That’s when her job performance should be evaluated. She may or may not have an opponent and voters can debate “judicial philosophy,” not whether the organized Christian Republicans liked a particular decision or not.
Fortunately, recall of Oregon judges is rare. Only three trial judges have been on the recall ballot over the last 20 years and only one has actually been recalled -- after he was censured by the Oregon Supreme Court for judicial ethics violations.
Polls show declining support for the initiative process as it is now practiced and a growing unwillingness to accept the results of initiatives because so many people refuse vote on them. People who want to retain the public’s ability to create initiatives ignore these changes in public opinion at their peril. Destroying the judicial career of a judge for simply doing the job expected of her is not going to win them many allies.
Copyright © 2005 by Russell Sadler
Russell Sadler is a journalist and a lecturer at Southern Oregon University. You may write him c/o publisher at westbynorthwest.org. Visit Sadler's Sense column's at West By Northwest.org:
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