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The big surprise in last week's ruling on the so-called crime victims' rights initiative was not the outcome--the court ruled it "invalid in its entirety." Rather, it was the unanimity the state's highest court achieved in the case. After all, four of the six judges who heard the case have powerful law-and-order credentials. Justice Ted Kulongoski arrived on the court after serving as the state's attorney general. Justice Mick Gillette had been the state's solicitor general. Justice George Van Hoomissen served Multnomah County as district attorney. Chief Justice Wallace Carson, who crafted the opinion, served as a Republican state senator. What was it about the Measure 40 case that drew these four so solidly in league with the court's former labor lawyer (Justice Skip Durham) and its constitutional scholar (Justice Sue Leeson)? Clearly, the Oregon Constitution had a say in the outcome. The state's fundamental legal document spells out how it should be amended: "When two or more amendments shall be submitted...to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately" (Article XVII, Section 1). Measure 40, however, contained five or six major constitutional amendments in a single initiative. Among other things, it would have changed the rules of evidence in criminal cases; allowed a jury to convict a defendant in a murder case by a vote of 11-1; changed the qualifications for jurors in criminal cases; and severely limited pretrial release of criminal defendants. Because Measure 40 lumped together so many amendments, the court could invalidate it without addressing the substance of any of the measure's controversial provisions. It certainly didn't hurt that many--if not all--of the key amendments contained in Measure 40 were themselves of questionable constitutionality. Nor could the court have ignored the fact that the measure's title--"Amends Constitution: Gives Crime Victims Rights"--was grossly misleading. Oregon adopted a true victims' rights measure a decade ago. The title to the more recent measure should have read: "Amends Constitution: Takes Away Substantial Number of Criminal Defendants' Rights." The real reason for the court's solidarity, though, may have been the way the measure's key backers--among them Multnomah County Chief Deputy District Attorney Norm Frink and Crime Victims United President Steve Doell--overplayed their hand. That is, Measure 40's authors were none too subtle in threatening to recall justices who ruled against them. Such improper threats, of course, lose much of their sting when all members of the court join to issue a strong opinion. This left Frink whining to The Oregonian. "I'm afraid," he was quoted last Friday as saying, "the court has reached critical mass as far as politicizing itself." Nothing could be further from the truth. All six justices simply followed the law as it's laid out in the Oregon Constitution. The true politicization of this matter can be expected to begin this fall. That's when Bob Tiernan's campaign for a seat on the Supreme Court kicks into gear. It will also be interesting to see how long it takes Tiernan and company to bring back their proposed initiatives to "reform" the way judges are selected in Oregon. After last week's ruling, at least they'll have to propose their so-called reforms one at a time. We trust voters will know how to respond. The Oregon State Bar now posts Supreme Court decisions on its Web site almost as soon as those decisions are made public. The Measure 40 case, formally known as Armatta vs. Kitzhaber, can be found at http://www.osbar.
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