judgesonmerit.org

An editorial in the Philadelphia Inquirer identifies a major problem with judicial elections: money.  Citing the recent Report by Justice At Stake, the Brennan Center for Justice and the Institute on Money in State Politics, the editorial observes:

When it comes to spending money to elect state Supreme Court justices, Pennsylvania is No. 1.Unfortunately, this is not a top ranking to boast about. That’s because the river of money that flows into judicial elections creates the perception for many that justice isn’t always blind.

Money and judicial selection just should not mix; simply put, judges should not be in the fundraising business.  Merit Selection takes money out of the process of choosing judges and focuses attention on what really matters: skills, qualifications, and a reputation for honesty, fairness and impartiality.  Pennsylvanians deserve a system they can be proud of and trust to produce fair, impartial judges.

Lynn Marks, PMC’s executive director, joined the moderator of Pennsylvania Newsmakers, Terry Madonna, on Sunday to discuss Merit Selection and the need for judicial selection reform in Pa.

Marks outlined some of the problems inherent in judicial elections:

Just think of yourself in court and then you start wondering, ‘Gee I wonder if Terry made a large contribution to one of those judges. And then I think, ‘I wonder if Terry’s lawyer made contribution, and then I think, ‘Gee I hope my lawyer made a huge contribution.’ I shouldn’t even be thinking that when I’m in a court of justice.

Merit Selection takes judges out of the fundraising business.  Judicial campaigns would not have to raise money from lawyers, law firms and organizations that later could appear before them in court.

Currently, this overlap between contributors to judicial campaigns and frequent participants in court is a major cause of concern for the public.  It creates the perception that judges are beholden to special interests, which undermines the integrity of the courts.

Under Merit Selection, this fundraising cycle would be broken, and people would not have to question whether a judge might be influenced by a campaign contributor or supporter.  As Marks explained,

“That’s all we’re asking for, is for. . . [litigants] to feel like they’re getting a fair shake in court.”

This is a big judicial election year for Ohio, and trouble is brewing already. Like Pennsylvania, Ohio limits the political and fundraising activities of judicial candidates.  But the Columbus Dispatch reports that the candidates for  Chief Justice are trading allegations of unethical campaign conduct.

The Republican Party alleges that Chief Justice Eric Brown improperly solicited campaign contributions.  The Democratic Party alleges that Brown’s challenger Justice Maureen O’Connor, improperly endorsed another judicial candidate.  The Democratic Party also alleges that another sitting Justice, Justice Judith Ann Lanzinger, a Republican up for re-election, also violated the rule against endorsing other candidates.

Aren’t we getting tired of these stories?  These allegations, coupled with expensive elections funded by lawyers, law firms and organizations that frequently litigate in the state courts, makes one wonder why states continue to elect judges.  It seems that money problems and political entanglements are the  inevitable partners of judicial elections.

We need a system that gets judges out of the fundraising business and limits partisan political activity.  Merit Selection is such a system.

Pennsylvania isn’t the only state that’s realizing the need for merit based selection of appellate judges rather than partisan races fueled by special interest money.

A Minnesota bill on the same issue went further than ever before in the state legislature but ultimately came up short a few weeks before the end of the session.

The bill would have placed a question on a fall ballot asking voters whether to amend the state constitution to make the switch to merit selection.

Under the Minnesota proposal, the governor would appoint judges to fill open seats, and voters would decide whether or not to retain the judge. An independent judicial-performance evaluation commission would also be created to evaluate judges’ performances.

Despite the outcome, Minnesota proponents of merit selection pledge to continue working for reform.

Nevada is even closer to selecting judges on merit. In November Nevada voters will decide the issue after the state legislature approved the proposal’s wording last month.

Both of these states are on the right track. Fair trials require impartial judges, which is why merit selection, not partisan elections will result in a more diverse and qualified judiciary. With the rising costs of judicial elections and the potential large donors may appear in front of those same judges in court the time to change to switch to merit selection is now.

Paul Carpenter of the Allentown Morning Call devoted his weekend column to a call for Merit Selection.  He reasons that the role of money in the judicial election process poisons the judicial system:

The problem should be obvious to anyone. A child in grade school can see why there’s a conflict if a judge in a position to rule on a legal dispute takes money from somebody with a vital financial interest in that case.

Carpenter spoke with PMC’s Lynn Marks:

”Pennsylvanians should not take pride in leading the nation in spending for judicial elections,” Marks told me. ”Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”

Carpenter agreed, arguing “How is it possible for a judicial candidate with a shred of integrity to accept. . . money . . .  [from]  lawyers, law firms and lobbyists with ties to law firms having business before the Supreme Court.”

Unfortunately, under our current system of electing judges, these contributions are legal.  And, the judges are not required to recuse from cases involving campaign contributors.  This all leads the public to be concerned about the influence of money on judicial decisions.

Carpenter argues that the money problem causes a “stench” in our courts.  He urges reform:

That stench can be ended only one way — the merit selection of appellate judges, instead of letting their elections depend on millions of dollars in ”contributions” from lawyers and others with a stake in how these courts rule.

We hope the legislature will begin the process that will let Pennsylvanians decide how to address the problems caused by money in judicial elections.

It is hard to amend the Pennsylvania constitution.  Doing so requires passing the same piece of legislation twice — once each during successive two year sessions.  That’s only the beginning.  After second passage, the question goes on the ballot, where the people vote in a referendum on whether to approve the amendment.  This takes a long time and a lot of effort and  consideration.  And that’s entirely as it should be — amending the constitution deserves careful scrutiny and attention.

We think it’s time to get this process started so that the people of Pennsylvania can decide whether to change the way we select appellate court judges.  We’re in the early stages — we’re just working for the first consideration of Merit Selection legislation by the legislature.  But this would start the dialogue in Pennsylvania about a critical issue.

We welcome such a discussion.  We think it’s long overdue.  And we  know  many Pennsylvanians do as well.  So, we hope the legislature will get it started so that Pennsylvanians can ultimately make this important decision for themselves.

Pennsylvania Chief Justice Ronald Castille, in an interview with the Philadelphia Inquirer about the recent charges filed against State Senator Jane Orie and her sister Janine Orie, who works in the judicial office of Justice Joan Orie Melvin, expressed concern about how the developing story might impact the Court: “‘It’s not good, I can tell you that.’”

The Chief Justice noted that the allegations are related to political campaigns, including Justice Orie Melvin’s recent successful campaign for the Supreme Court, not the Court itself.  However, he also acknowledged that:

[T]he public may not see the fine line between the court and the allegations – especially because the charges come on the heels of the “kids-for-cash” scandal in Luzerne County, where two former judges are accused of sending juvenile defendants to detention centers in return for $2.6 million in kickbacks.

This “fine line” is something we’ve always found problematic — it’s hard to separate the justices and their work on the Court from the political process that got them to the bench.  That’s one reason that the public perceives that campaign contributions may influence judicial decision-making.  And it’s a big reason to treat judges differently from other elected officials — not only once they are in office, but also while they are trying to reach office.  That is, judges are different and should be selected differently.

The Chief Justice noted that Justice Orie Melvin should recuse herself from any case involving the Allegheny County prosecutor’s office because presiding over cases involving those prosecuting one’s family members could create a perception of impropriety.  Jack Orie lawyer (and brother) to Senator Orie and Janine Orie (and brother of Justice Orie Melvin) stated that Justice Orie Melvin would recuse from such cases.

It remains to be seen how the ongoing investigation and prosecution will impact the Court.  As we reported yesterday, the Pittsburgh Times-Tribune reported that a second grand jury is being impaneled to continue the investigation, and Jack Orie expressed the belief that it would be targeting Justice Orie Melvin.

PMC and PMCAction’s editorial appears in today’s Legal Intelligencer (subscription required), outlining why a change from judicial elections to a merit selection process for Pennsylvania’s selection of appellate court judges is important and why the time to begin the steps to undertake such a change is now.

Executive director Lynn Marks and deputy director Shira Goodman report that judicial elections, fueled largely by donations from law firms, lawyers, businesses, unions and political parties, are becoming increasingly expensive. Pennsylvania just completed its most expensive Supreme Court election to date.

In addition, many of those who contribute to judicial campaigns are likely to later appear in court.

A new study by the nonpartisan, nonprofit American Judicature Society, or AJS, found that in 82 civil cases decided by the Pennsylvania Supreme Court in 2008 and 2009, 60 percent involved a party, lawyer, or law firm that had contributed to the election campaign of at least one of the sitting justices. Moreover, in nearly 32 percent of the cases, one participant (a party, lawyer, or law firm) had contributed to at least four of the six elected justices. (The seventh justice had been appointed to fill an interim vacancy.)

Marks and Goodman note that this leads to the public perception that not all parties will be given an equal opportunity in court.

As a 2009 USA Today /Gallup poll confirmed, the public is very concerned about the potential influence of campaign contributions on judicial decision-making: 89 percent of respondents called the influence of campaign contributions on judges’ rulings “a problem.” More than 90 percent of the 1,027 adults surveyed said judges should not decide cases that involve a campaign contributor.

While public tolerance for this system may be waning, changing the way we select our judges requires changing the state constitution. Marks and Goodman explain,

It is — and should be — difficult to amend the Pennsylvania constitution. Doing so requires passage of an amendment by both houses of the legislature in two successive two-year sessions. Following that, the public votes in a referendum to approve or reject the proposed amendment. This is a lengthy process that affords ample time and opportunity for debate, and concludes with a final vote by the people of the state. The hurdles involved in this process demonstrate that amending the constitution should not be undertaken lightly.

But the process exists for a reason, and is used when the people find that something needs to be changed to improve the functioning of our commonwealth. We believe that our system of electing appellate judges in expensive, divisive, partisan contests is not the best way to ensure that the most qualified, fair, honest and impartial judges reach the appellate bench. A diverse coalition shares this view, and studies demonstrate increasing public concern about the effect of campaign money on judicial decisonmaking. Judicial selection is an issue that is ripe for reconsideration by the people of Pennsylvania.

KYW 1060 reported on the American Judicature Society report on the degree of overlap between contributors to the campaigns of Pennsylvania Supreme Court justices and those appearing before those justices in Court.

The news report quoted PMC’s Lynn Marks explaining that although the report does not draw any conclusions about whether the contributions influenced judicial decisionmaking, “Each dollar raised and spent raises doubts in the public’s mind about whether or not justice is for sale.”

The report quoted Pennsylvania’s Chief Justice Castille’s response:

‘I actually share that opinion to some degree myself. . . . The money does have an outward appearance of a lack of fairness in the system.’ Castille says that’s one of the drawbacks to elected judges.

We very much agree with this assessment and hope Pennsylvanians will have the opportunity to determine whether to change how we select appellate court judges.

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.