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Pennsylvanians for Modern Courts today announced that a new study by the American Judicature Society confirms Pennsylvanians’ concerns about the problematic role of money in judicial elections. AJS reports that in 2008 and 2009, more than two-thirds of the civil cases decided by the Pennsylvania Supreme Court included a litigant, lawyer or law firm who previously had made a campaign contribution to at least one of the elected justices.

The AJS  study examined the 112 civil cases decided by the Court in 2008 and 2009 and determined the number of cases in which at least one of the litigants, attorneys, or law firms involved had previously made a contribution to the election campaign of at least one justice.

The degree of overlap between the list of contributors and the list of those appearing before the Court is eye-opening:

• In two-thirds of the cases (67%), at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one justice.

• In nearly half of the cases (46%), a single litigant, lawyer, or law firm had contributed to at least four of the six elected justices’ election campaigns.

Malia Reddick, Director of Research and Programs at AJS observed:

We were particularly struck by the number of cases in which the same contributors had made campaign donations to a majority of the Court’s members.

The AJS study does not attempt to determine whether campaign contributors received more favorable rulings. PMC’s Marks explained, however, that:

When one party to a case has contributed to a member of the Court deciding that case, it creates an appearance of influence that causes citizens to doubt the fairness of our judicial system.

Legislation is currently pending in the Pennsylvania legislature to amend the constitution to implement Merit Selection for appellate court judges. “Merit Selection takes money out of the selection process and ensures that we select judges based on their qualifications and experience, not the size of campaign war chests,” concluded PMC’s Marks.

JudgesOnMerit and other like-minded groups and coalitions across the country are working hard to spread the message that judges, particularly at the appellate level, should not be elected. Instead, we argue, for each vacancy, judicial candidates should be screened by a non-partisan citizen panel representing the diverse spectrum of interests in the community, which will then pass on a few names of highly qualified individuals from which the governor will nominate one.  This nominee would be subject to Senate confirmation. The public would have input in the vetting process, and will have the ultimate say in retention elections, where, after 4 years in office, voters would decide whether the judge would serve on the bench for a full ten-year term.

The primary reason for the impassioned calls to end appellate judicial elections is because the judiciary is different from the other branches of government. In civil cases, judges hear disputes between parties and make decisions favoring one party over another, often in matters of the greatest import. That unique role gives judges direct power over the lives of individuals, and is the reason why throughout history, the impartiality of judges has been a keystone of democracy. Many things affect and protect this impartiality, including strict canons of judicial conduct, systems of judicial discipline, and recusal standards (rules whereby judges dismiss themselves from cases where they have an actual or perceived conflict of interest). But perhaps the most important yet least appreciated pillar of judicial independence relates to the way judges are selected in the first place.

The founding fathers of our nation, our commonwealth, and our sister states recognized the need to keep judges out of the political fray, and so, across the board, provided that judges be selected in some form other than popular elections. It was only later, during the Jacksonian populist movement in the mid-19^th Century that states began shifting to popular elections of judges. Whatever motivated the shift at that time, and there has been much discussion on the issue, it is high time to return to the foundational principles of judicial independence.

If we want judges to be independent – that is, to make decisions based on impartial interpretations of the law, to set aside politics, and to protect the interests of individuals even in the face of popular opposition – it is inappropriate to ask judges to campaign for their positions. But it is downright nonsensical that judges raise money from the very parties that frequently will appear before them in court.

A study in this month’s Judicature magazine, published by the American Judicature Society, reveals that in 2/3 of all cases heard by the Pennsylvania Supreme Court in 2008 and 2009, at least one party had contributed to the campaigns of at least one of the justices (and in almost half the cases, at least one party had contributed to at least 4 justices, that is, a majority of the bench).

Many of our readers know this to be a general problem, and will likely be shocked by this statistic. But what, exactly, is the problem? Is the problem that because judges’ campaigns take money from the parties that have or will appear before them in court, those judges are corrupt? Certainly not. Even in states such as our own, where candidates for appellate judgeships sometimes engage in nasty partisan campaigns, and where factors other than qualifications (such as ballot position, name recognition, and party affiliation) often decide elections, those that make it to the bench are by and large fully qualified to serve. Is the problem then that judges will tend to favor a contributing party in a dispute over a non or lesser contributing party at a sub-conscious level? It is very difficult to measure something like this through objective research, but it is at least a possibility. As the recent U.S. Supreme Court decision in Caperton v. Massey recognized, human psychological tendencies and weaknesses are such that when enough money is involved, at least a risk of actual bias or prejudgment may be created.

The greatest problem, however, has to do not with outcomes in specific cases, but with the effect judicial campaigning and fundraising have on the public’s perception of justice. We pay respect and honor to judges when we address them; we clothe them in grave black robes; and we have them sit elevated from the rest of us, looking down in judgment. A simple traffic court judge is addressed as “Your Honor,” while even the office of the President of the United States commands no such title. All of this, so that decisions handed down by the courts are respected – and that respect is so critical because the judiciary as an institution has no means to enforce its edicts.  Indeed, for a court to have any power at all, the public must believe that justice, and not some perversion of it, is being meted out in its marble hallways, and that judges are impartial arbiters of disputes and interpreters of law rather than mere political actors.

That is the reason not a single other country in the world elects judges. And it is the reason why just the perception of the potential for impropriety alone is so damaging to our democracy. Whether or not a judge is actually corrupted by campaign contributions, or tends to sub-consciously favor a contributor over a non-contributor, the public perception that such a misbalancing of the scales of justice can occur is inherently present in an elective system. We know this at a visceral level: it just smells wrong when a judicial candidate’s campaign asks a person for money and the judge later rules on that person’s dispute. Despite the fact that we elevate the judiciary in so many ways, by essentially forcing judges into the political fray, we demean our collective respect for the concept of justice itself.

Merit Selection is not a perfect system. Some who argue against it make valid arguments. But it may, to paraphrase Sir Winston Churchill, be the worst form of judicial selection “except all those other forms that have been tried from time to time.”

This will be my final post on JudgesOnMerit, though I will certainly stay involved in the fight for Merit Selection in Pennsylvania. I wish everyone at PMC as well as Shira, Susan, and the other bloggers at JudgesOnMerit the best of luck in this campaign. To all our readers: keep reading, keep communicating with your legislators, and help us keep money away from the courtroom (except for adequate funding, of course).

Wisconsin can learn the perils of partisanship in judicial elections from PA. Like Pennsylvania, Wisconsin still elects its appellate judges. Unlike the Keystone State, however, judicial candidates in Wisconsin do not run in partisan elections, that is, there is no “(R)” or “(D)” next to candidates’ names on ballots. This is an important distinction. PA is one of only six states that elects all of its judges in partisan elections. As a result, judicial elections in the Commonwealth have become increasingly negative, and increasingly expensive.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

In an editorial in the Times Union (upstate New York), Abbe Gluck and Victor Kovner, members of the Board of New York’s Fund for Modern Courts argue that the U.S. Supreme Court’s decision in Citizens United should cause states to seriously consider replacing judicial elections with Merit Selection.  They write that opening the doors to greater financial participation in judicial elections by unions and corporations

[P]lainly jeopardizes the independence of much of our state judiciary. Plainly, the sense that judges may be beholden to financial donors — whether actual or even just perceived — undermines public confidence in our courts.

We share this concern and know that we are not alone in thinking that public perception is critical — in fact, when it comes to the courts, perception is basically reality.

The writers go on to explain:

Apart from any restraints on corporate contributions that may be adopted by Congress, it is up to individual states to close the gaping hole the court opened, and amend their state constitutions to end judicial elections. Whatever limits the Citizens United majority held that the federal Constitution imposes on corporate expenditures in judicial elections, nothing in the decision limits state governments from eliminating those elections in the first place.

This is a critical point.  The people have the right to choose the best way to select judges.  Nothing requires judicial elections.  As Justice O’Connor pointed out during the Georgetown Law-Aspen Institute Conference last week, our Founding Fathers placed great value on an independent judiciary and chose not to elect federal changes.  At that time, most states did not elect judges either.

The article concludes with an interesting note about Justice O’Connor and her unique insights into the issue of judicial selection: “It is no small detail that she is the only living U.S. Supreme Court justice who also has served as an elected state court judge.”  Justice O’Connor knows what it means to an elected judge, and she is urging states to reject judicial elections. Pennsylvanians should pay attention.

PMC Deputy Director Shira Goodman attended this week’s Georgetown Law-Aspen Institute conference focused on selecting judges in the wake of the Caperton and Citizens United decisions. Goodman reports that there were two clear messages: First, judicial elections are about to become even more expensive, partisan and divisive. The second and more optimistic message is that now is the time for judicial selection reform.

Justice O’Connor said the recent Supreme Court decisions should serve as a warning for states that elect judges and urged them to consider changing to Merit Selection. She explained that the Caperton decision demonstrated how contributions and campaign spending can poison the judicial system. In her view, Citizens United signaled that the problem of campaign spending in judicial elections could quickly be getting even worse.

This comes as no surprise, as we have long been concerned about the growing problem of mixing money with choosing judges. We hope that Justice O’Connor and others are correctly predicting that these recent decisions will serve as a wake-up call.

Pennsylvania needs to have a serious dialogue about how we choose appellate court judges. We hope that dialogue can proceed. If not, we will lose what Justice O’Connor has called the “one safe place” we have — fair and impartial courtrooms.

Pennsylvanians for Modern Courts today announced that the 2009 Supreme Court election between Republican Joan Orie Melvin (the winning candidate) and Democrat Jack Panella is likely to set new fundraising and spending records.  The final numbers are not yet in, as candidates can continue to raise funds until the end of the year.  But we can now report that the Supreme Court election cost at least $4.5 million, and PMC believes the total is significantly higher.

PMC’s press release documents fundraising and spending by the candidates’ campaigns, but notes that although they together raised and spent over $3.6 million, that is not the whole money story.  Instead, we found it necessary to research who else was spending money on the election.

The answer was political bodies, incuding the state Republican Party, the state Democratic Party, and the Republican Senate Committee.  In fact, the state Republican Party directly funded Judge Orie Melvin’s television campaign, to the tune of at least $975,849.  This means the state Party outspent the candidate’s own campaign.

Reports also reveal that from January 1, 2009 until November 23, 2009, the state Republican Party spent at least four million more and the state Democratic Party spent close to $2 million. Although the parties were not required to identify the candidates on whom they spent money, it seems reasonable to assume that a good portion of that six million dollars was directed to the Supreme Court election.

Pennsylvania had the nation’s most expensive Supreme Court elections in the 2007-08 election cycle, and the available data is leading elections experts to predict that Pennsylvania will again earn that title for 2009-10.   As PMC’s Lynn Marks explained, “Pennsylvanians should not take pride in leading the nation in spending for judicial elections.  Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”

In a letter to the Philadelphia Inquirer, PMC’s Shira Goodman argues that Merit Selection ends the money game that is so much a part of judicial elections.  Remember, much of the money that funds appellate court election campaigns comes from lawyers, law firms, businesses, unions and others with cases before the appellate courts.  In addition, the political parties often — like in this year’s Supreme Court race — spend big money to elect their favored candidates.

Merit selection eliminates all this spending and, most importantly, stops the flow of money from lawyers to the campaigns of judges likely to rule on their cases.

The letter also focused on the role of the public in a Merit Selection process, including: participation on the nominating commission; providing information about applicants for appellate court vacancies to the nominating commission, the Governor and the Senate during the application/evaluation, nomination and confirmation processes; and voting in retention elections to determine if judges should remain on the bench.

Critically, only the people of Pennsylvania can change the way we select appellate court judges:

Pennsylvania can change the way we select appellate judges, but only if the people vote to amend the constitution. It is time to let Pennsylvanians make this decision.

On Monday, the Courts Subcommittee of the House Judiciary Committee held a hearing on the pending Merit Selection legislation.  Representative Josh Shapiro (D, Montgomery) chaired the hearing in Subcommittee Chair Don Walko’s (D, Allegheny) absence. Also attending were Minority Subcommittee Chair Tom Creighton (R, Lancaster), bill sponsor Matt Smith (D, Allegheny), Mike Vereb (R, Montgomery), Joseph Petrarca (D, Armstrong), Kathy Manderino (D, Philadelphia and Montgomery), Kate Harper (R, Montgomery), Glen Grell (R, Cumberland) and Deberah Kula (D, Fayette and Westmoreland).

The hearing was very informative.  Nearly all who testified — both those who supported the legislation and those who opposed it in some way — agreed that there are problems with the current electoral system, notably the role of money in the process.  This consensus is significant and reflects the public’s belief in the corrupting influence of money in the process.

Testifying on behalf of the legislation were PMC and PMCAction’s Bob Heim, Lynn Marks and Shira Goodman; Dave Taylor of the Pennsylvania Manufacturer’s Association; and Charlotte Glauser of the League of Women Voters of PA.  J. Whyatt Mondesire of the NAACP was scheduled to present testimony in support of Merit Selection but was unable to attend.

In the next few days, we will upload copies of the testimony presented at the hearing, but we offer a few highlights.  Bob Heim, Chair of PMC, focused on the need for reform and the importance of getting judges out of the fundraising business. He highlighted the public’s growing concern that money can influence judicial decisionmaking and called on the legislature to allow Pennsylvanians to decide whether to change the way we select appellate court judges.

Charlotte Glauser of the League of Women Voters of PA explained the League’s long standing support for Merit Selection, urging “Passage of these bills will do much to restore the public image of independence of Pennsylvania’s appellate court system.”

PMA’s Dave Taylor explained that Merit Selection would “improve the professionalism, integrity, and independence of the judicial branch of goverment.” Taylor explained:

By combining elements of elective and appointive systems for nominating our appellate court judges, Pennsylvania can uphold the professionalism of the courts and protect our jurists from the conflicts of interest that inevitably arise from political fundraising and campaigning.

Testifying in opposition were Tom Foley III of the Pennsylvania Association for Justice (formerly the Pennsylvania Association of Trial Lawyers), Professor Michael Dimino of Widener University, and Rick Bloomingdale, Secretary Treasuer of the AFL-CIO.  Professor Dimino actually endorsed a Merit Selection for the Superior and Commonwealth Courts and even for the trial level courts, but argued against Merit Selection for the Supreme Court.

Rick Bloomingdale of the AFL-CIO noted the organization’s current opposition to the legislation, but expressed a willingness to support an amended version of a Merit Selection plan. This is significant, and we are hopeful that as the Committee considers the bill, we can work with our traditional partners and with groups such as the AFL-CIO to design the best system of judicial selection for the Pennsylvania appellate courts.

In a publicly released letter to bill sponsor Matt Smith, Governor Rendell again expressed his strong support for Merit Selection:

I have said on many occasions that our system of electing appellate judges makes no sense. It is no secret that there is great concern in Pennsylvania about the role of money in judicial elections. Current law could allow judicial candidates to accept indirect contributions from lawyers and special interest groups that may eventually have to argue a case before that judicial candidate. It is no wonder that Pennsylvanians have been losing faith in our courts and our judges.

PMC and PMCAction are grateful to the House Judiciary Committee and its Subcommittee on Courts for the opportunity to present public testimony at yesterday’s hearing. We thank the bill sponsors, Representatives Smith and Will Gabig (R, Cumberland), for their leadership as well as all the representatives who attended the hearing.  We look forward to working together to achieve a better way for Pennsylvanians to select appellate court judges.

In the wake of the United States Supreme Court’s decision in Caperton v. Massey, many states decided to review their rules governing recusal.  Michigan  last week formally issued a new recusal rule that includes a provision empowering the entire Supreme Court to review and overrule the refusal of one of the justices to recuse. Our friends at Gavel Grab have a detailed analysis of the continuing bitter debate between the current justices regarding this rule.

What grabs our attention is the particular focus of the dissenting justices on the “rights of elected judges” and those who voted for them.  Here’s part of Justice Maura Corrigan’s commentary dissenting from the rule change:

For the first time in our state’s history, duly elected justices may be deprived by their co-equal peers of their constitutionally protected interested [sic] in hearing cases. Starting today, those contesting traffic tickets will enjoy greater constitutional protections than justices of this Court.

When it comes to the courts and fair trials, we’ve always been most concerned about the litigants having a fair trial.  Certainly, a litigant’s right to have a fair and impartial judge outweighs a judge’s right to hear a particular case.  And, frankly, a litigant’s rights — even in traffic court — should be of more concern to everyone who cares about justice than the judge’s right to preside over a particular case.

Chief Justice Marilyn Jean Kelly made a similar point in her response to the dissenters:

[I]t is a gross perversion of law for Justice Corrigan to allege that, ‘In one administrative order [the recusal rule], the majority takes away the right of every citizen of Michigan to have his or her vote count.’ The accurate statement is, with this rule, the Court permits a justice’s recusal where that justice is unable to render an unbiased decision and unable or unwilling to acknowledge that fact. The justice system and this Court can only be stronger for it.

Winning an election does not give a judge the right to preside over any or every case that comes before the Court.  Nor does voting for a particular judge give the public the right to have that judge preside over any or every case that comes before the Court.  A judge should only hear a case if it is certain he or she can be fair and impartial.

The results at the ballot box should not dictate when a judge is free from bias in a particular case.  In face, as we have argued repeatedly, it is precisely because judges are elected that strong recusal rules are necessary. The fact that some — including some state Supreme Court justices in Michigan — seem to believe that election returns are more important than ensuring a fair and impartial court — should be of great concern to us all.

The Appeals Court panel considering the charges of judicial misconduct filed against Wisconsin Supreme Court Justice Michael Gableman for a misleading election ad has recommended that the charges against him be dismissed.  The question will now go to Justice Gableman’s colleagues on the state Supreme Court for final resolution.  Gavel Grab has a good summary of the case and events leading up to it, and you can read the panel’s decision here.  What worries us is the possible further erosion of the differences between judicial elections and other elections and what it might mean for Pennsylvania.

The case focused on the Wisconsin Supreme Court Rule governing judicial campaign conduct. The pertinent part reads:

A candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identify, qualifications, present position, or other fact concerning the candidate or an opponent.  A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

The panel found that the ad in question  — which focused on Justice Gableman’s opponent and a criminal case he handled as a public defender — did in fact violate the second part of the Rule.  None of the statements in the ad were false, but taken together they were misleading.  However, the panel also concluded that only the first part of the Rule is mandatory (the “shall not” clause), while the second part (the “should not” clause) is aspirational.  Violations of the second clause cannot be the basis for the imposition of discipline.

One judge wrote in concurrence to note that he believed the conduct violated the entire Rule but that the Rule itself was in violation of the First Amendment.  He found the rule to be “an unconstitutional arrogation to a government tribunal of the electorate’s responsibility and sole power to assess campaign speech.”

What’s troubling is the continuing erosion of the special rules regarding judicial elections that recognize that judges are different from other public officials. The more judicial elections become just like other elections — with major fundraising, campaign speeches, heated debates on hot-button issues, and misleading, sensational ads — the more difficult it is for the public and the judges to recognize the unique role judges play.  Once that recognition fades, it will be very hard to recapture when a judge actually takes the bench.  We see that now with the widespread public perception that “justice is for sale” to the biggest campaign contributor.  If judicial candidates may permissibly mislead voters in their campaigns, we will witness an ever decreasing confidence in the courts.

There has been a movement across the nation to challenge and strike down rules and regulations that set up special conditions for judicial elections.  Pennsylvania’s Code of Judicial Conduct (which regulates judicial candidates as well) provides in Canon 7B1(c) that “Candidates, including an incumbent judge, for a judicial office. . . should not . . . misrepresent their identity, qualifications, present position, or other fact.”  Will Pennsylvania be the next state to find that “should not” is just an aspiration and judicial candidates are free to mislead the voters in their quest to reach the bench? Let’s hope not.