Ballot measures aim to rein in judiciary

DENVER – Channeling anger at “activist judges” into action, conservatives in several Western states are campaigning for ballot measures that aim to limit judicial power and rein in what they describe as “runaway courts.”

Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench.

On Nov. 7, voters will be asked to do something about it.

South Dakota’s ballot contains the most radical provision: It would empower citizens to sue judges over their rulings.

Other proposals would make Colorado the first state to impose term limits on top judges and, in Montana, give residents the right to recall judges over any “dissatisfaction.”

In Oregon, an amendment would require Supreme Court and appeals court judges to be elected by geographic district, to reflect the values of conservative rural communities as well as the liberal legal establishment in Portland.

In three other states, ballot measures would limit judicial authority, although that is not the primary intent.

Proposition 90 in California aims to restrict government’s right to condemn private property; it also takes elements of such cases out of judges’ hands and entrusts them to juries. Nevada has a similar initiative. And a proposal in North Dakota severely would curtail the discretion judges have in settling custody disputes.

Supporters cast their efforts as populist and democratic, a way to make judges answer directly to the citizens they serve.

“This is a very measured and mild response to the perception that our courts are out of control,” said John Andrews, a former legislator promoting the amendment to impose term limits in Colorado.

Opponents, however, warn that the initiatives would begin to dismantle the system of checks and balances set up under the U.S. Constitution.

“Judges are there to protect the minority from the tyranny of the majority. They are not there to do the popular will,” said Doreen Dodson, a St. Louis attorney who chairs the American Bar Association’s committee on judicial independence. “They are accountable to the law and the Constitution.”

States have struggled to balance judicial independence and accountability, said Rorie Spill Solberg, a political scientist at Oregon State University. Lately, she said, that scale has tipped toward accountability – and a notion that judges should respect, even represent, the will of the majority.

All but eight states ban partisan elections for judges in an effort to keep politics – and corruption – off the bench. But Solberg and others worry that the latest wave of changes would make judges more vulnerable to pressure from interest groups and individuals.

“What I see, pretty much across the country, are judges under siege,” said former Colorado Supreme Court Justice Rebecca Love Kourlis.

South Dakota’s Amendment E would have the most sweeping effect; it has drawn opposition from conservatives and liberals – including every member of the state Legislature.

Under the amendment, any judge in the state could lose his or her job or their assets if citizens disliked how the judge had sentenced a criminal, resolved a business dispute or settled a divorce.

“We want to give power back to the people,” said Jake Hanes, a spokesman for the measure.

A special grand jury would evaluate citizen complaints against judges – and judges would not be presumed innocent. Amendment E explicitly instructs jurors to “liberally” tilt in favor of any citizen with a grievance, and “not to be swayed by artful presentation by the judge.”

This deep suspicion of judges is reflected not only on the fall ballot, but also in the rallying cries of the right, especially Christian conservatives. A summit for “values voters” last spring included a session called “The Judiciary: Overruling God.” Mock ballots, circulated online, urge Christians to vote for the judge they’d most like to impeach.

The American Bar Association is so concerned about the trend that it recently produced a DVD called “Countering the Critics,” to be screened at churches, Rotary Clubs and Chambers of Commerce nationwide.

Andrews’ campaign has spent more than $300,000 reminding voters in Colorado of rulings that he considers outrageous, such as when judges struck down a school voucher program, canceled a ballot initiative to limit services for illegal immigrants, and voided the death penalty for a convicted murderer because jurors used the Bible to guide deliberations.

The Colorado amendment has drawn high-powered opposition, with public statements coming from many district attorneys, three former governors and Republican Gov. Bill Owens.

“Reasonable people, present company included, will disagree with rulings from time to time, but that does not mean we dismantle an entire branch of government,” said former Gov. Richard D. Lamm, a Democrat.