The Oregon Judiciary Part II: Challenges for the 21st Century

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Introduction

Across the nation, state court systems face a wide variety of challenges – from large caseloads and inadequate funding to outside efforts to influence the decision-making process.  The judiciary is the most poorly understood and least visible of the three co-equal but separate branches of government.  Oregon’s courts face these same challenges.

Following the 2001-2003 legislative session, five special sessions of the Legislature left the Oregon Judicial Department with a record decrease in funding.  The funding cuts caused staff reductions, staff salary reductions, and closure of all Oregon state courts on Fridays for several months.

Three ballot measures and two legislative proposals sought to change judicial selection and election in Oregon.  Each of those initiatives would have politicized the process of appointing and electing judges or made it easier to remove judges from office.  All five efforts failed.

• 2002 – Two ballot measures would have amended the Oregon Constitution: Ballot Measure 21 to require “none of the above” as an alternative on the ballot for each judicial office and Ballot Measure 22 to require election by district of judges of the Oregon Court of Appeals and justices of the Oregon Supreme Court.
• 2003 – Two legislative resolutions proposed to amend the Oregon Constitution: Senate Joint Resolution 29 to require election by district of justices of the Oregon Supreme Court and House Joint Resolution 42 to require senate confirmation of each person appointed by the governor to fill a judicial vacancy.
• 2006 – Ballot Measure 40, like Measure 22, would have amended the Oregon Constitution to require election by district of judges of the Oregon Court of Appeals and justices of the Oregon Supreme Court.

In this two-year study, the League of Women Voters of Oregon has examined the role of the Oregon Judicial Department and some of the issues it faces in the early years of the twenty-first century.  The League’s first publication in this study, An Overview of the Oregon Judiciary, presented a brief review of the history, structure, and basic functions of the Oregon Judicial Department.  This publication further explains the work and the major challenges facing the courts today.

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A View of Oregon Trial Courts in 2006

The Oregon Judicial Department (OJD) is the state-funded judicial branch of Oregon government.  The OJD consists of the circuit courts (the trial courts), the Oregon Tax Court, the Oregon Court of Appeals (the intermediate court of review), and the Oregon Supreme Court (the highest court of review).  While the three levels of the OJD share common characteristics, circuit courts have some that are unique to the work that they do.  Oregon’s circuit courts are its trial courts of general jurisdiction.  That is, trial court judges hear all types of cases, other than tax cases.  Although Oregon has 36 counties, it has only 27 judicial districts.  Five judicial districts include more than one county.  (See Appendix A.)  As of January 2007 there are 173 circuit court judges assigned to the judicial districts, from which they are elected.

The judicial districts are diverse in geographical size and population.  The 4th Judicial District (Multnomah County) is the smallest in area (465 square miles), has the largest population (672,906), and has the most judges (38).  The 24th Judicial District (Harney and Grant Counties) is largest in area (14,756 square miles), has a population of 14,950, and has one judge who divides his time between the courthouses in Harney and Grant Counties.  Two other judicial districts have only one judge:  the 8th Judicial District (Baker County) and the 26th Judicial District (Lake County).  The physical size of a district, its population, and the availability of the services necessary to the work of the court (e.g., certified interpreters; certified mediators; and drug, alcohol, and mental health services) all affect the ability of the circuit court judges to do their work.

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Court Facilities

Among the buildings used by the OJD, the state owns and maintains only the Supreme Court Building and the Justice Building, located on the Capitol Mall in Salem.  Those historic buildings house the offices of the justices of the Oregon Supreme Court, the judges of the Oregon Court of Appeals, and their staffs.  Both courts hear arguments in the Supreme Court Courtroom on the third floor of the Supreme Court Building, which also houses the Oregon Law Library.  The buildings are maintained with money from the state General Fund.

There is at least one courthouse in each of Oregon’s 36 counties.  Some counties have additional court facilities (Multnomah County has a courthouse and four other facilities used by the circuit court).  These buildings are the home of the Oregon circuit courts.  Ten courthouses that are a century-old are still in use.2  Many were built in the 1950s,3 and two were built in the last ten years.

Legislation passed in 19814 requires each county to “[p]rovide suitable and sufficient courtrooms, offices and jury rooms for the court, the judges, other officers and employees of the court and juries in attendance upon the court, and provide maintenance and utilities for those courtrooms, offices and jury rooms”5 for the circuit court within its boundaries.

Counties receive some help from the state for court security costs,6 but each county bears the financial responsibility for structural changes in or replacement of its court buildings.  Over the years many counties have found it increasingly difficult to meet that obligation.  Today many of Oregon’s courthouses are inadequate for the work that they do; or, as in the case of Multnomah County, the 90-year-old courthouse is so vulnerable to earthquake that it is considered life-threatening.7  The Multnomah County courthouse not only is seismically unsound but also has massive problems in its plumbing, electrical, heating, and air systems.8

A judicial district having the workload to justify additional judges may not receive them without the county’s agreement to provide the courtroom space for additional judges. Clackamas County demonstrated the need by reason of its workload for at least two more judges, but the county only had the financial resources to construct one additional courtroom and office space for one judge.  The Legislature authorized one new judge for Clackamas County.  The new judge took office in January 2007, but the court must continue to struggle with a workload in excess of its judicial and staff resources.  Renovation of the courthouse to add one courtroom and judge’s chambers caused relocation of the jury assembly room and law library from the courthouse to a nearby building. 9

There are only two new courthouses in Oregon.  The old Klamath County courthouse was declared unsafe after two earthquakes in 1993 registering 5.9 and 6.0 on the Richter scale.  Four years passed before Klamath County voters passed a bond measure and construction began on the new courthouse.10  The old courthouse in Hermiston was fire-bombed and recently replaced with a state-of-the-art building.11

In only four judicial districts did presiding judges and trial court administrators tell us that their courthouse facilities were adequate for their current needs.  The comments from other judicial districts revealed many problems with courthouse facilities, including lack of space for judges, staff, juries, mediation services, child care, conference rooms, specialty courts, records storage, and security personnel and equipment.  Some courts are struggling to fit 12-person juries into courtrooms equipped with only 6-person jury boxes.

Aside from space issues, the aging courthouses have serious heat and air conditioning problems, faulty electrical systems, a need to upgrade to accommodate current technology in courtrooms and elsewhere, insufficient compliance with access requirements under the Americans with Disabilities Act, and inadequate fire protection and fire-warning systems. 

In counties with smaller populations, the courts share buildings with county offices.  Most often, the court is located on the upper floor of the building.  That location limits access for those litigants, jurors, witnesses, and the public who are not able to climb stairs.  Elevators are not always reliable and, in at least one courthouse, do not exist. While the courts have a need to secure their premises against weapons, these counties do not want to limit the public’s freedom of access to the building by setting up security devices at building entrances or by limiting the number of entrances.

Security often presents major problems.  Multiple building entrances make it hard to control security.  Often defendants in custody must pass through the same hallways used by jurors, victims, and other members of the public because there is no secure passageway through which to move prisoners.  Some courthouses have bullet-resistant glass protecting office staff or metal detectors at the door of the courthouse or of the courtroom, but there is concern for the safety of the judges, persons in custody, and everyone who works or has business in the courthouse.   For example, in the winter of 2006 an angry man drove his pickup truck through the entrance of the Marion County Courthouse.

Most counties do the best they can but, with persistent revenue problems, providing “suitable and sufficient” courtroom facilities may not be the highest priority.  As of 2005 Union County did not attempt additional bond measures for a new courthouse knowing that it would be competing against the schools.12  At least two bond measures to finance a new courthouse have failed in Clackamas County.13

In the last 12 years there have been five task forces appointed to deal with the issue of court facilities, but the problems remain.  The latest such task force, working in 2006 and 2007, has attempted to involve all interest groups in the process and focused on issues such as financing, the meaning of "suitable and sufficient," and ownership of the facilities.  The task force will submit to the Legislature proposed legislation addressing these issues.14

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The Trial Court Administrator and Circuit Court Staff

Trial court administrators and the court staff are as important as the judges to the smooth functioning of the courts.  The 1981 legislation that created Oregon’s state-funded court system made the presiding judge of each judicial district the administrative head of his or her circuit court.18  The legislation authorized the presiding judge of the judicial district to appoint a TCA, with the approval of the circuit and district court19 judges of the district, to assist with the administrative duties of the court.20  That local control of the circuit courts is balanced by the role of the State Court Administrator who, under the supervision of the Chief Justice, oversees the budget, the personnel system, and the information technology system used by all the courts.21  

The 1981 legislation charged the TCA with responsibility for the care, custody, and control of court records.22  The Legislature has since added additional statutory responsibilities, including oversight of court security plans and creating and maintaining disaster recover plans.  “In addition to the statutory duties, the trial court administrator’s ultimate responsibility is to ensure that the delivery of services to the court’s customers is carried out in as efficient and as timely a manner as is possible with the resources available.”23

• TCAs oversee all court staff, with the exception of judicial assistants, who report directly to their judges. 
• TCAs manage day-to-day operations of the courts including human resources, budget, records, case flow, jury system, purchasing, and information systems and technology.  
• TCAs gather statistics on court processes and report to the state. 
• TCAs implement projects the judges request, such as drug court.
• TCAs collaborate with government officials and agencies to facilitate operation of the courts.  “The TCA is an integral link between the court and the Office of the State Court Administrator, local Bar, adult and juvenile probation departments, local law enforcement agencies, juvenile and adult services providers, and a variety of civic organizations, the public in general, and the media.”24

Some of the state’s TCAs manage multiple courthouse facilities.  In addition, in judicial districts with smaller populations, TCAs must be able to perform the same duties as the court’s staff.

Circuit court staff members perform a myriad of duties including keeping the court calendar, jury coordination, data entry, filing, general office work, and customer service.  They are also in charge of collections and accounts, and serve as cashiers.  Court staff members may have specialized duties, such as family law coordinator, drug court specialist, mediation coordinator, verifier for indigent defense,25 or technical support.  In smaller judicial districts, staff members are cross-trained to do all the work that needs to be done.

Court operations personnel require training in court processes and the legal system.  Other staff members with special skills include computer technicians, language interpreters, financial recorders, stenographic reporters, drug court coordinators, and family law coordinators.  Law clerks must have a law degree.

Staff members are typically trained on the job by another experienced staff member.  The State Court Administrator’s (SCA) office offers training programs in Salem and by video or computer.  The SCA also arranges Peer Information Exchanges for sharing of “best practices.”  Staff training varies from court to court.  Nearly all TCAs noted the importance of training but lack both funds and staff time for training away from the court.

About one quarter of the 27 judicial districts reported having sufficient staff to do the necessary work.  More than half described their staff situations as “understaffed for the number of cases,” with “too frequent vacancies.”  In Tillamook County some staff members agreed to four-day work weeks (nine hours per day) to create salary savings of 10% to be used for supplies.  Where there are sufficient staff members to handle the basic courtroom duties and data entry, there are often not sufficient staff members to operate innovative programs such as drug court.  Regardless of the challenges TCAs face, TCA Tracey Cordes of Benton County expressed the common sentiment: “The bottom line is that we have no choice but to get the work done and we get it done, largely because our staff are very hard working.”

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Case Management in Oregon’s Circuit Courts

In 2005, 611,946 new cases were filed in the circuit courts of Oregon.  The most cases filed in a single district (206,388) were filed in the 4th Judicial District (Multnomah County), and the fewest cases filed in a district (857) were filed in the 24th Judicial District (Harney and Grant Counties).26  The circuit courts closed 626,460 cases. 27  In the first six months of 2006, 305,380 new cases were filed 28 and 309,944 were closed. 29  

Circuit court judges handle a wide variety of cases, including felonies, misdemeanors, violations, general civil litigation (some examples are contract disputes and personal injury cases), domestic relations cases, family abuse protection orders, juvenile dependency and delinquency cases, civil commitments, probate, landlord-tenant disputes, and small claims.  It is a challenge for the judges and staff to manage the large caseload.

In all districts, judges balance time deadlines mandated in criminal cases and in juvenile dependency cases with trying to dispose of civil cases, some of which also have deadlines that the court must accommodate (for example, landlord-tenant disputes).30  All presiding judges responded that they are getting by.  Common comments were that they are “right on the edge” or “barely” managing to get by.

As the state continues to grow, courts will need more judges and increased staffing.  Washington County with 14 judges and Clackamas County with 11 judges have large populations that continue to grow.  Presiding Judge Thomas Kohl (Washington County) reported projections that, in 10-15 years, Washington County will have more residents than Multnomah County, which now has 38 judges.

Deschutes County is a fast-growing community where the court is struggling with its current staffing and judges.  As TCA Ernest Mazorol explained, “Staff turnover has left us unable to keep up with a changing and increasing population.  With the population growth, we have more murders, disputes over water rights, and drug use (especially meth) which impacts personal and domestic abuse as well as property crimes.”  Presiding Judge Michael Sullivan commented, “Within a few years we won’t be able to handle it any longer.”

The likelihood of a conflict of interest with a party to the litigation creates problems for circuit courts with few judges.  As Presiding Judge David Hantke (Tillamook County) observed, when conflicts occur “we must ask a judge from another district to handle the matter which, in turn, adversely affects that judge’s schedule and disposition of cases in that judge’s district as well.” 

Some judicial districts have special problems that add to their caseload and affect case management.  For example, Marion County, as the seat of state government, faces many complex governmental legal challenges.  Multnomah County has the largest caseload of all the judicial districts, including many complex civil actions and class action cases.  Other judicial districts are affected by the presence of a state prison, an Indian reservation, or areas of high poverty.  Some judicial districts do not have enough local language interpreters.

Large caseloads may result in delay in disposition of cases.  In Josephine County, where a recent study of judicial resources determined the court is in need of a fifth judge, Presiding Judge Lindi Baker noted that scheduling delays have caused criminal defendants to seek dismissal of charges for lack of a speedy trial.  “Delay in resolving cases,” she said, “also impacts child custody cases, as children need permanency, security, and a safe home.”

Courts have developed a variety of techniques to better manage the large caseloads.  For example, the largest district, Multnomah County, relies on 15 non-elected referees31 who work as pro tem judges.32  Multnomah County has also “taken a number of shortcuts that result in hearings lasting much shorter times than would be optimal” (Presiding Judge Dale Koch).

Rural judicial districts have few judges, great distances to travel for all who are involved in hearings and trials, and few attorneys willing to represent indigent defendants in criminal cases.  Such districts are able to manage their caseloads by developing systems to overcome the handicaps of distance.  They use closed circuit TV to connect judges, lawyers, and litigants for court hearings and trials. About 35 to 40 times a year, Presiding Judge William Cramer (Harney and Grant Counties) continues a trial into the night to avoid extending the trial into another day.  Presiding Judge Lane Simpson (Lake County) has held court on Saturday and for longer hours during the week.  Both judges are the only judges in their judicial districts.

Rural judicial districts also rely on local courts33 to carry some of the burden. The single circuit court judge and the staff in each of Baker and Harney County circuit courts benefit from their local justice courts which hear traffic, misdemeanor, small claims, and forcible entry and detainer (evictions from real estate) cases.  The same is true for the two-judge circuit court in Malheur County.  Those types of cases generate large workloads which the judges and small circuit court staff in each county would have difficulty handling.

Jurisdiction of local courts over certain types of cases also creates concern.  Seven eastern Oregon counties (Sherman, Gilliam, Wheeler, Morrow, Malheur, Grant, and Harney) have boards of county commissioners called county courts.  Each has a county judge who chairs the county commission and performs some limited judicial functions.  County judges do not need to be lawyers.  Oregon law gives county judges authority to hear juvenile matters.34  One presiding judge expressed serious concern that a non-lawyer is allowed to handle matters involving a very complex area of the law that may have consequence for juveniles.  Municipal courts in Wasco, Polk, and Clatsop Counties hear driving while under the influence of intoxicants (DUII) violations that are committed within the city limits.  Like juvenile matters, this practice raises a concern that DUII violations are matters of such consequence that they should be heard in the circuit courts. 

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Disposition of Criminal Cases

Presiding judges identified many issues they face when disposing of criminal cases, but the following were mentioned most often.

Judges consistently said the greatest concern was the difficulty of securing, or the inability to secure, treatment for drug abuse, alcohol abuse, and mental health problems.

Judges reported the enormous impact of methamphetamine addiction with its devastating effects on families, particularly children, and the crimes committed in the community to support the addiction.  Some counties offer drug treatment in their jails, but presiding judges noted that a substance abuser, without treatment after release from jail, will re-offend.  Addicted offenders are often held in jail facilities pending acceptance into publicly-funded residential programs.  Not all communities have treatment programs.

The capacity of local jails often determines how long defendants will be held in custody for pending court appearances, for probation violations, or to serve a sentence for an offense.  Only a few counties have adequate jail capacity.  Some counties operate their jails at less than full capacity because they cannot afford to fully staff a jail facility, sometimes renting beds to other county corrections departments.

Criminal cases place the greatest demand on the court calendar and delay trials of civil cases.  The OJD has set a goal of 120 days for the timely disposition of 90% of criminal cases.35  Interviews revealed difficulties meeting this deadline due to caseload, crime lab delays, and failure of the defendant to appear in court for a hearing or trial.  Releasing a defendant from custody prior to trial contributes to the failure to appear in court.  Dockets are filled with jury trials that are cancelled at the last minute because of a defendant’s failure to appear or a last-minute negotiated settlement between the district attorney and defense counsel. 

Presiding judges reported that fairness and balance in sentencing is a positive objective, but that sentencing guidelines are restrictive and limit judges’ discretion.  For offenses governed by Measure 11,36 judges have no discretion in sentencing.  Judges commented about the unfair effects of Measure 11 and were concerned that it has made sentencing a tool to be used by the District Attorney in plea negotiations, giving the District Attorney the power to decide both the charge and the penalty.  Sentencing guidelines, as set forth by the Oregon Criminal Justice Commission,37 allow for aggravating and mitigating factors and past criminal history.  Measure 11 does not consider criminal history and does not allow any variance in the predetermined sentence for the felonies it specifies.38

Sentencing may involve restitution payments, fees or fines.  One presiding judge commented on the pressure to assess and collect fines and restitution, but noted that a judge has to consider the ability of the defendant to pay.  He posed the question:  “How do you impose a fine when the defendant has no money?”  The responsibility for collecting fines from people who do not have the ability to pay was cited by trial court administrators as a time-consuming and often fruitless task.

Probation officers monitor offenders for compliance with the terms of their probation and report any violations to the court.  A number of judges reported insufficient funding and personnel for probation services, particularly in DUII and misdemeanor cases.  Judges observed that probation is much more cost-effective than jail.

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What is Working?  Effective Techniques in Case Management

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Alternative Dispute Resolution

Alternative dispute resolution (ADR) saves both the court and the parties to the suit some of the expense and time of a trial.  The three types of ADR are arbitration, mediation, and settlement conferences.39

Arbitration in civil cases claiming under $50,000 is mandated by statute.  Presiding judges reported using mediation primarily in three types of cases:  small claims, domestic relations (except in cases of domestic assault), and child custody.  Settlement conferences (conducted by a judge other than the judge assigned to the case) are widely used in civil cases.  Benton, Lane, Malheur, Polk, Sherman, and Umatilla Counties use settlement conferences in criminal cases.

Presiding Judge Charles Luukinen (Polk County) described his experience working as the pretrial settlement conference judge in two murder cases, one in Umatilla County and one in Sherman County.  Settling each of those cases avoided the difficulties of finding impartial jurors for a notorious case in a small county and of taking jurors away from their jobs for a long trial.  The settlement also saved the county the costs of litigation and related costs.

The success of ADR is due to a number of factors, presiding judges said.  ADR gets the parties in a lawsuit to communicate.  Once they achieve a settlement, the parties are more likely to abide by it because they have worked out the issues themselves.  Presiding Judge John Collins (Yamhill County) observed that ADR is particularly appropriate for domestic relations cases involving “parents who must overcome difficult feelings … and be able to cooperate and collaborate for the best interest of their children.”  He has found that the adversarial process of a trial works counter to that result.

Although the cost of ADR is low relative to the costs of a trial, presiding judges reported that the expense of ADR remains a problem for low-income people.  Availability of professional arbitrators and mediators in remote judicial districts with small populations is also a problem.

Concern exists that the extensive use of ADR to dispose of cases may be “a comment on the sufficiency of the system”40 and lead to a “public perception that too many cases are being settled without going to court.”41

Half the presiding judges are looking for additional ways to use ADR.  Presiding Judge Sullivan (Deschutes County) would like to add additional ADR but needs “more resources and more room.”  “This is the wave of the future,” he said.

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The Value of “Problem-Solving” Courts

The Report of the American Bar Association (ABA) Commission on the 21st Century Judiciary, Justice in Jeopardy, acknowledges the changing role of trial judges in the nationwide movement to problem-solving courts.42  The first such court was Dade County, Florida’s drug court, which opened in 1989.  Specialized courts now address other chronic problems such as mental illness and domestic violence. 

Problem-solving courts also promote increased trust and confidence in the justice system for people who had previously shown dissatisfaction with the operation of the courts.43  Such evidence caused the Commission to conclude that, “By making judges more visible and active ‘problem solvers’ in their communities, such courts have the potential to reduce public alienation from the courts – particularly in communities of color where such alienation is … commonplace.” 44

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Drug Court

Drug court is a specialty court that guides substance-abusing offenders through a comprehensive program of treatment, drug testing, and supervision using immediate sanctions and incentives to force offenders to deal with their substance abuse problem.45 The ABA Commission’s report notes that traditional safety nets such as family no longer exist for many offenders, and traditional sentencing merely recycles substance abusers back onto the streets where they continue to commit crimes to support their addictions.46 Nationally, drug courts have proved to be an effective way to reduce repeat offenses committed by substance abusers.47

Presiding judges noted that drug court is time-consuming and may disrupt the flow of cases on the docket, but those problems are outweighed by the positive effects of drug court on the participants, the resulting benefits to their families, and reduced crime in the community.

Multnomah County’s drug court, established in 1991, is the second oldest drug court in the nation.  A 2003 cost-benefit evaluation of this court found that the total cost per drug court client was less than the cost of processing a substance-abusing offender through the court system in the traditional way.48  

The OJD and the Oregon Department of Human Services (DHS) jointly sponsor drug court programs in 25 counties.  Information prepared by DHS reports that “of 1,869 drug court graduates between January 1, 2001 and June 30, 2005, 1,677 (90%) had no new misdemeanor or felony charges in an Oregon Circuit Court in the year after” their graduation from the program.49  Most judges and legislators are convinced that drug courts are cost effective and worth the investment of money and staff time.  Grants often pay for additional staff time and treatment resources.      
 
Federal grants funding drug courts in Benton, Marion, Malheur, and Multnomah Counties were due to terminate in 2005.  The Oregon Legislature added drug court funding for those four courts to the OJD budget in 2005 and allocated $2.5 million to the Oregon Criminal Justice Commission to award grants for drug court programs in other counties along with funds to develop, administer, and evaluate drug court programs.50

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Mental Health Court

As of December 2006, Clackamas, Coos, Deschutes, Lane, and Yamhill Counties have mental health courts.  Mental health courts operate in the same way as drug courts.  Eligible offenders work with the judge, prosecutors, mental health professionals, and social workers.  Presiding judges reported that these courts succeed in treating the offenders and reducing recidivism.  An obstacle is funding for mental health services.

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Family Law Court 

All circuit courts handle family law cases.  In Multnomah County and other large districts, judges may be permanently assigned to family law duties.  In smaller districts judges handle a mix of family, civil, and criminal cases.  In one-judge districts, the judge handles all cases involving the family.

Legislation adopted in 1993 allowed any judicial district to create a family court department with the approval of the Chief Justice of the Oregon Supreme Court.51  The goal of family court is to coordinate before a single judge all matters relating to one family (e.g., separation and dissolution of marriage proceedings, criminal proceedings involving domestic violence or other crimes between family members, juvenile dependency or delinquency matters, guardianship of minors, and proceedings to commit a mentally ill person).

In that year the Legislature created the Task Force on Family Law to develop a new family conflict resolution system to foster healthier relationships between the parties and more civilized conflict resolution during the divorce process.  1995 legislation allowed circuit courts to establish an education program designed to inform parents about the emotional impact of family restructuring on children.52  In 1997 the Legislature mandated the provision of services to families involved in domestic relations or other family court proceedings.53  Each judicial district was required to establish a Local Family Law Advisory Committee and to develop a plan to coordinate services to families.54  In 1997 then Chief Justice Wallace P. Carson, Jr. appointed the Oregon Family Law Services Commission to devise a plan for delivering family law services to low and middle-income Oregonians.55

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Commercial Court

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Suggestions for Change in Court Structure

A number of judges recommended adding three judges to the Oregon Court of Appeals.  Of the 39 states that have intermediate courts of appeal, the Oregon Court of Appeals ranks first or second among those courts in its workload.57

Presiding judges and TCAs expressed a need for additional circuit court judges and for pro-tem judges or referees to handle matters such as small claims and traffic cases.  In the past, funding for new circuit court judicial positions depended largely on the political influence of legislators.  Retired Chief Justice Edwin J. Peterson recognized the importance of finding a better way to evaluate the need for new judges.58  He appointed a committee known as the Joint Committee on Trial Court Judicial Resources.  Its members include members of the Oregon State Bar and judges of the Oregon Circuit Court.

Circuit court judicial districts seeking an additional judicial position apply to the Committee.  The district must show that there is a need for an additional judge and that the request has the support of the county board of commissioners.  The Committee receives data prepared by the State Court Administrator’s office showing the predicted need for judges in each judicial district, based on case filings.  To assess the need for new judges the Committee relies on a judicial workload assessment model developed in 1999 by the National Center for State Courts (NCSC) for the Oregon Circuit Courts.  That model accounts for the workload of all judicial activities to determine the average amount of judicial time needed to process one case.  For each year the Committee reviews, it applies the NCSC model to the case filing statistics to prioritize the need for new judicial positions.  The Committee holds hearings in Salem and makes recommendations for new circuit court judicial positions.  The recommendations are made part of the OJD budget submitted to the Governor and the Legislature.  A new circuit court judge position comes with three funded staff positions.

There is a significant delay from the time the need is established until the judge elected to the new circuit court position takes the bench.  For example, using 2003 case filing information, the Committee recommended four new judicial positions to the 2005 Legislature, which created four new judicial positions with funding to start in January 2007.

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Access to the Courts and Fair Treatment for Those Who Use the Courts

Every day circuit court judges and staff serve customers of the court who do not know what is expected of them, who do not speak English, who do not understand the law, who cannot afford a filing fee, or who cannot afford a lawyer.

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Who Are Our Judges?

Oregon circuit court judges are not very ethnically diverse.  Presiding judges reported three Hispanic judges; one judge with some Native-American background; and one judge who is a member of the Klamath tribe.  Few judges speak any language other than English.  Four speak Spanish and one judge speaks French. The most diverse group is in Multnomah County.  Among the 38 judges are five who are openly gay or lesbian, two African-Americans, and two Asians.59  One judge in Washington County is Asian-American.

Women are fairly well represented in Oregon circuit courts.  Many of the counties with few judges have at least one woman, and Multnomah County has 16 women judges.  Nine of the 27 districts have no female judges.

Probably the greatest number of circuit court judges have backgrounds as district attorneys or have worked in a district attorney’s office.  Others come from private practice, many with backgrounds in criminal defense.

Most presiding judges thought that the lack of diversity among them has little or no effect on the quality of the services provided by the courts.  The judges make a strong effort to give everyone a fair hearing without regard to such characteristics as race, national origin, sexual orientation, or economic status.  Presiding Judge Luukinen (Polk County) stated, “The judge has to decide whether the individual on trial has a good case or not.  The decision must be clear and based on facts, not race….  It is not necessary to be part of a minority group either ethnic or otherwise to understand and be prepared to deal with persons who have cultural or ethnic differences.”  Many noted the use of interpreters to assist those who do not speak English.  Presiding Judge Simpson (Lake County) offered that the lack of diversity does affect his court because of the lack of a qualified interpreter in the district. 

A few judges did express some concerns about racial and cultural diversity.  Despite many efforts for outreach, the court in Jackson County has been largely unsuccessful in making a meaningful connection with the large Hispanic community in the area.  The presiding judges in Multnomah and Clackamas Counties believed that the lack of diversity on the court might cause a public perception that minorities do not receive fair treatment.  Presiding Judge Koch (Multnomah County) stated, “It has been a problem recruiting African-American and Hispanic-American candidates for judicial office because, compared to the amount of compensation those lawyers can or do earn in the private practice of law, judicial salaries are low.”  Judges and staff receive training to recognize and deal with problems caused by lack of diversity; judges make an effort to learn about the cultures that they serve.  In several of the smaller districts, judges commented that there is little diversity in the population they serve.

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Accommodations for Those Who Do Not Speak English

In its May 1994 report, the Oregon Supreme Court Task Force on Racial/Ethnic Issues in the Justice System, chaired by retired Chief Justice Peterson, described problems that racial and ethnic minorities experience in dealing with the courts and in the justice system. A basic problem was the failure of the courts to provide assistance to those who do not speak English.  Following that report, then Chief Justice Carson appointed a committee to implement the Task Force’s recommendations.  In its January 1996 report, the committee stated: 

“The promise of ‘equality before the law’ is an empty one unless the context for its fulfillment exists.  Equal justice presupposes access.  For example, a non-English-speaking person without a qualified interpreter or the benefit of translated forms will not understand the court’s orders, cannot properly analyze her options, cannot communicate her position to the judge and may not even seek the court’s aid because she is unaware of her options.  Access requires understanding.  For the non-English-speaking person, the key to understanding is found in linguistically compatible information about the judicial system and the courtroom experience.”60  (Original emphasis.)

Language continues to be a common barrier in the circuit courts in 2006.  Presiding judges and TCAs in 21 judicial districts raised the issue of communication in a language other than English.  Certified interpreters are needed during court proceedings; bilingual staff members are needed to communicate with non-English speakers about other court business.

Legislation passed in 1993 authorized the State Court Administrator to develop a program to certify interpreters for non-English speaking parties or witnesses and for disabled parties or witnesses.61  That same year the OJD made the AT&T Language Line available to the circuit courts.  The Language Line provides services of certified interpreters 24 hours a day via a conference call or a speakerphone call.  The State Court Administrator intended for courts to use the Language Line during nontraditional work hours and for uncommon foreign languages.  The Language Line was not intended to replace live interpretation. 62  Some counties, however, reported using the service for in-court interpreter services.  Some courts reported using the Language Line for transacting business at the service counter.

Several judicial districts have significant problems securing the services of the certified interpreters that they need: 

• Marion County needs interpreters of Marshallese.  It is expensive to fly interpreters from the Marshall Islands. 
• Umatilla and Morrow Counties use contract Spanish interpreters almost every day.  Those interpreters come from some distance at a cost of $35 per hour, plus travel expenses.  That cost is a problem for the courts’ budgets.  Local people do not become certified interpreters because of the high cost of the certification process.
• Linn County shares the services of one interpreter with Benton County. 
• There is no qualified interpreter in all of Lake County.

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Selection of Judges

To balance independence and accountability of the judiciary, various methods of selecting judges have evolved.  In the earliest years of our nation, the governors of the states generally appointed state judges.  During the first half of the nineteenth century, many states established partisan elections as the method of judicial selection on the theory that all governmental positions should be filled by popular vote.  By the end of the 19th century, many states had shifted to nonpartisan elections to reduce the influence of political machines.  In 1940 Missouri adopted a method of selection, originally proposed in 1913 by the American Judicature Society, involving appointment by the governor based on recommendations of a nominating commission and subsequent “retention elections.”  That method is now often referred to as the Missouri Plan.

Current methods of selecting judges for state courts vary significantly from state to state and sometimes from one level of court to another within the same state.  Four principal methods of selecting judges are in use:77

• Merit selection with a nominating committee (with or without retention elections)
• Appointment without nominating committee
• Partisan election
• Nonpartisan election.

Many states use a combination of methods with different approaches for initial selection, retention or filling of mid-term vacancies.  In a retention election the sitting judge’s name appears on the ballot, uncontested.  Voters cast a “yes” or “no” vote to retain or not to retain the sitting judge.

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Judicial Elections78

Thirty-nine states conduct judicial elections with 87% of all state judges nation-wide facing election.  One third of appellate judges and ten percent of trial court judges face only retention elections.79  Twelve states80 employ nonpartisan elections for initial selection of judges at all levels.  Five additional states81 select judges at some level by nonpartisan election.  Six states82 use partisan elections for initial selection at all levels of the judiciary, and four others83 use partisan elections for some or all of their trial court judges.  Louisiana is the only state using a special election

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Oregon’s Method of Judicial Selection and Election

In Oregon, voters elect judges for six-year terms to the state courts in nonpartisan elections.89  In effect the Oregon system is a hybrid one, since the Governor may appoint a qualified person to fill mid-term vacancies.  An announcement of judicial vacancies on the Multnomah County (4th Judicial District) bench states:

Governor Kulongoski fills judicial vacancies based on merit.  He encourages applications from lawyers with a wide variety of backgrounds and experiences. The Governor's Office will ask the Multnomah Bar Association's Judicial Screening Committee to assist with the review process.90

Similar screening committees are used in other judicial districts.  At the appellate level, the Oregon State Bar's Board of Governors' Committee on the Judiciary conducts “a due diligence review process of the applicants for this vacancy and provide[s] information about each applicant to the Governor's Office.”91  The Governor’s Screening Committee – a group assembled by the Governor – interviews the final candidates.  (Prior governors have at times used polls from local bar associations as a tool in selecting judges, since attorneys are most familiar with potential candidates.  Governor Kulongoski does not use them.)  For both appellate and circuit court positions, the appointee must run for a full term in the next general election.  In September 2005, 75% of Oregon’s sitting state judges had reached the bench by gubernatorial appointment to fill mid-term vacancies.92  To fill temporary vacancies (e.g. illness or conflict of interest), the Oregon Supreme Court may select any qualified person as a judge pro tempore.

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Judicial Selection and Judicial Independence

Several factors in the selection of today’s state judges have led to concern about threats to judicial independence and damage to the public’s perception of the judiciary:

Campaign Contributions.  Judicial elections, particularly those for state supreme court judges, have become increasingly expensive, requiring judicial candidates or those acting on their behalf to raise large sums.  Large contributions from special interest groups (e.g., business groups, lawyers, and medical groups, etc.) can lead to real or perceived influence on judicial decision-making.

Campaign Speech.  The 2002 US Supreme Court decision in the case of Republican Party of Minnesota v. White93 intensified a trend toward increasingly contentious judicial contests.  By a 5-4 majority, the high court ruled that an “announce” clause in the state’s Judicial Code of Conduct violated First Amendment rights to free speech.  The clause forbade judicial candidates from “announcing” their views on controversial issues that might come before them on the bench.  Commenting on this decision, Luke Bierman, director of the Institute for Emerging Issues at North Carolina State University, writes:

"Likewise, the 2002 Supreme Court decision in Minnesota Republican Party v. White [sic] and its progeny that eliminated some restrictions on judicial campaign speech have contributed to a judicial campaign environment that mirrors the worst examples of legislative and executive elections.  Judicial candidates are called upon to describe their views on controversial issues without regard to the facts or law of particular cases.  They are empowered to characterize others in shameless ways in pursuit of electoral success and encouraged to employ the worst campaign tactics in order to win.  While these developments allow more information into the free exchange of ideas, they do so at the cost of undermining the differences that have contributed to the judiciary's success as an independent branch of government."94

Retired U.S. Supreme Court Justice Sandra Day O’Connor, who wrote a concurring opinion in the case to emphasize her objections to election of judges,95 recently commented that she might be rethinking her stand on judicial speech limits, but not her dislike of judicial elections.

The Supreme Court’s decision in Republican Party of Minnesota v. White has led to additional decisions limiting the ability of states to regulate judicial campaign conduct. For example, in Weaver v. Bonner, the Federal Court of Appeals for the Eleventh Circuit struck down several provisions in the Georgia Code of Judicial Conduct.  The court interpreted the White decision as freeing judicial campaign candidates to personally solicit campaign contributions.96

Unpopular Decisions.  Incumbents may be targeted for decisions unpopular with the public even though those decisions may be made in conformance with law.  Also, incumbents may feel pressure to bow to public opinion in deciding controversial cases near to the time of an election.

Oregon’s Experience.  In Oregon, the years following the change to nonpartisan elections in 1931 saw few contested elections for the appellate courts, and campaigns “remained largely apolitical.  Judicial candidates were reserved and conscientious in their campaign tactics.”97  Oregon Supreme Court judicial campaigns began to become more “political” in the late 1950s with increased attacks on candidates’ personal qualifications. In 1976 voters approved a constitutional amendment that authorized Supreme Court discipline of judges and judicial candidates who violated rules of judicial conduct established by the Supreme Court.98

Until 1998, however, Oregon campaign attacks concentrated on the candidates.  With the candidacy of Bob Tiernan in that year, the attacks shifted to the institution of the court itself, with reports of Tiernan publicly criticizing the Supreme Court as “too liberal” and campaigning with a “Tough on Crime” platform.99 
           
Campaign financing also escalated at this time, with Tiernan receiving nearly $200,000 from three individuals.100  In 2000 Supreme Court candidate Greg Byrne received contributions from some of the same individuals. 101  That race and other court of appeals and supreme court elections have also seen contributions from special interests who, through their TV or radio ads or fliers sent to voters, suggest that the candidate will support a particular point of view, if elected.102  In 2006, Supreme Court candidate Jack Roberts received $150,000 from American Justice Partnership,103 a national organization supporting business efforts to limit lawsuits.  His opponent, Virginia Linder received support from lawyers, unions, and others, but in smaller individual contributions. 104  The 2006 election set new records for financing of Oregon Supreme Court races, with Roberts raising $738,115 and Linder $332,965 in the primary and general elections.  Including contributions for the third candidate in the primary election, more than $1.4 million was raised. 105
                                   
The unsuccessful recall attempt against Circuit Court Judge Mary Mertens James because of her ruling declaring Measure 37 unconstitutional demonstrates the vulnerability of incumbents to removal for an unpopular opinion.  In Oregon, all public “officers” are subject to recall after serving six months in office.  All that is required is a petition by 15% of the “number of electors who voted for Governor in the officer’s electoral district at the most recent election at which a candidate for Governor was elected to a full term” stating the reasons for the recall demand.  The Oregon Constitution places no restrictions on the reasons for recall: an officer may be recalled for any reason.  If the officer does not resign within five days, a special election must be held within 35 days to determine whether the officer will remain in office.106
           
In Oregon, threats to judicial independence posed by campaign fundraising occur in elections to the circuit court as well.  A number of presiding judges expressed discomfort with campaign fundraising.  Judges are not permitted to raise campaign funds personally but instead must use a fundraising committee.  Nevertheless, there may be real or perceived pressure placed on parties who may appear in the court or, conversely, real or perceived pressure on the elected judge who may face actual or potential contributors and supporters in the courtroom.  Presiding Judge Gregory Baxter (Baker County) noted:         

“It is a somewhat uncomfortable idea to think that in a contested race, I would have to raise money and campaign and then be expected and required to be a neutral and detached judge over legal disputes with the same people I just sought money from and campaigned amongst.  Those two expectations seem to develop natural conflicts.”

To avoid the appearance of influence by supporters, several of the interviewed presiding judges used their own money to finance their campaigns or sought funding only from family or close friends.  Most Oregon circuit court judges face uncontested elections, reducing the need to raise significant campaign funds.  Contested elections, when they occur, can be expensive.  Some fear that the cost of a campaign may discourage good candidates from seeking judicial office.

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