DENVER — Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to 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 give Montana residents the right to recall judges over any "dissatisfaction." In Oregon, an amendment would require Supreme and Appeals court judges to be elected by geographic district, so they reflect the values of conservative rural communities as well as the liberal legal establishment in Portland.
In three other states, ballot measures would also limit judicial authority, though that is not their 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 instead. Nevada has a similar initiative. And a proposal in North Dakota would severely curtail the discretion judges have in settling custody disputes.
Supporters cast their efforts as populist and democratic, a way to make judges answer more 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 Assn.'s committee on judicial independence. "They are accountable to the law and the Constitution."
States have always 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 ever more toward accountability -- and toward a notion that judges should respect, even represent, the will of the majority.
