Measure 87 Deals with Unintended Consequences

In a season of highly controversial ballot measures and no-compromise, multimillion-dollar “yes” and “no” campaigns, Measure 87 is set to be among the more peaceful decisions Oregonians have to make in November. Facing no organized opposition, the “fact specific and very narrowly drawn” measure would amend the state Constitution to permit state judges to simultaneously serve in either the National Guard or as a paid teacher in public universities.

According to UO Assistant Professor of Political Science Daniel HoSang, the measure would modify a valuable section (Article XV, Section 8) of Oregon’s Constitution that prevents one from working in two branches of government for compensation. “What you are trying to prevent is a judge, let’s say, also working in the state Legislature — someone who is interpreting the law also passing the law,” HoSang says. But, he adds, even valuable, time-tested laws can have an “unforeseen impact.”

To Sen. Floyd Prozanski, the measure’s main advocate, Article XV’s “unforeseen impact” can be seen here in Eugene, where Lane County’s Judge Karsten Rasmussen volunteers at the UO School of Law by teaching Oregon Civil Procedure and legal history courses, but is unable to receive compensation.

Considering the unmatched level of experience and expertise that active state judges could pass on to their students, and the prospect of attracting more judges to teaching at public universities by paying them for their time, Prozanski says, Measure 87 would be a huge benefit to Oregon’s public school law students.

Judges can and do teach at private universities for pay as they are not a different branch of government.

Given that the bill is a “housecleaning” bill, or one meant to efficiently clean up old language of the Constitution, Prozanski and his colleagues in the Legislature thought it would be a missed opportunity to not also include a provision for judges who wish to serve in the National Guard.

“Checks and balances — that’s the beauty of the Constitution,” Prozanksi says. “This is one exercise to show how it can be changed by the voters and only by the voters. It also shows that the Constitution is what we would consider a living, breathing document that is not something that should be allowed to go stale. Sometimes you have to revisit it.”

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