Legislature & The Law

Oregon Law Commission Considers Judicial Selection Oregonians have had the power since statehood to elect judges at every level of the judiciary. The acrimony that is a staple of today’s political campaigns has been largely absent from Oregon’s judicial contests. Nevertheless, soon-to-be retired Oregon Supreme Court Justice Paul J. De Muniz JD’75 believes it’s time to consider exchanging the current system for a new one of judicial appointment. He’s heading up a work group studying different ways to choose judges for Oregon’s appellate and supreme courts.

judges. The governor would select a judge from the list, and voters would decide later whether to affirm or deny that choice in a retention election. In 1977 the Legislature referred a version of the Missouri plan to voters, but it was defeated. Currently the Oregon State Bar’s Board of Governors recommends candidates to the governor for appellate openings that need to be filled by appointment, but the governor is not bound by the Bar’s recommendations. Wallace P. Carson Jr. JD’62, a retired Oregon Supreme Court Chief Justice and a member of the OLC work group, voted against the Missouri Plan when he served in the Legislature but said his thoughts about judicial selection are evolving. “I’m of the opinion let’s not work too quickly to find a

“The campaign financing has gone nuclear. We shouldn’t wait for a disaster here.”

cure for a problem we don’t have yet,” he said. “But maybe I’m out of date and we should move to forestall any problems.” Several polls have shown that voters are concerned about the role of money in judicial campaigns. A 2007 Zogby International poll of 200 business leaders showed 71 percent supported a selection process for judges. Four in five business leaders backed restrictions on either the amount of contributions or spending in judicial races. Thirty-four states and the District of Columbia use merit selection to choose at least some judges,

Paul DeMuniz

De Muniz, who has served on the Supreme Court since 2001, said he was “unprepared for the kind of politics that saturated my race” when he ran for the open seat he eventually won. He has watched special interest groups in states such as Michigan pour millions of dollars into Supreme Court races and worries the pattern could be repeated in Oregon. “The campaign financing has gone nuclear,” he said. “We shouldn’t wait for a disaster here.” One idea is for Oregon to adopt an appointment process called the Missouri Plan, which would set up a special commission to create a list of potential

10 | Willamette Lawyer

according to a study on judicial selection by the Institute for the Advancement of the American Legal System. That study concluded that no one system ensures judicial accountability, impartiality, quality, diversity and legitimacy. Evidence suggests that judges selected by merit, rather than election, are less responsive to political pressure in making decisions than elected judges. But supporters of elections, the study said, could argue that elections enhance judicial accountability to voters. The OLC work group is expected to submit its recommendations to lawmakers during the 2013 legislative session, which begins in January.