judgesonmerit.org

All of a sudden, other people seem to be doing our work for us, that is alerting the public to the evils of money in judicial elections.  Supreme Court candidates are challenging each other about campaign contributions, and the media is all over the story.  (Check out this story on NPR’s WHYY and articles in the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, The Philadelphia Inquirer/AP, Capitolwire (subscription required), and Allentown’s The Morning Call). So, let’s talk about money.

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

Campaign finance reports were due this week from Pennsylvania judicial candidates.  Judging from the Associated Press’ report, the money is rolling in. The AP reports that Democrat Jack Panella has raised $1.7 million this year, and Republican Joan Orie Melvin has raised $418,000 to date.  Unions and a political action committee of the Philadelphia Trial Lawyers’ Association account for a good portion of the reported contributions.

We have about five weeks until election day.  Looks like the 2009 judicial elections will be pretty expensive.

Usually judicial candidates — even those who support Merit Selection — are hesitant to criticize the electoral process or call for reform during the election season.  But yesterday, Supreme Court candidate (and current Superior Court Judge) Jack Panella, in an address to the Pennsylvania Press Club, noted that he believes there is a better way to select judges in Pennsylvania.  As the Associated Press reports:

Panella said he respects the efforts of Pennsylvanians for Modern Courts, a group[] that advocates that state appellate judges be appointed by the governor from a list recommended by a public commission.

He says he strongly supports the concept because it would take fundraising and political bosses out of the selection process.

Judge Panella’s comments underscore some of the big problems of the judicial election system.  Because he speaks with inside, first-hand knowledge of the process, his comments about the role of money and politics are particulary instructive.  If a judge who’s already been elected to one appellate court and is now running again for a seat on the highest court of the state thinks the process needs reform, maybe it’s time for more work to be done to ensure that Pennsylvania uses the best system to select appellate judges.

The West Virginia Supreme Court has ruled that Judge Michael Thornsbury is not required to recuse from the case involving Massey Coal Company.  According to the Associated Press (via Forbes.com), the high court found that “Conflict-of-interest allegations are not sufficient grounds for disqualification.”  However, the Supreme Court also ordered Judge Thornsbury to hold a hearing on the administration of the medical monitoring fund and what fees it can charge and to report back to the Supreme Court on that issue.

A little over a month has passed since the Caperton decision, and things still seem to be rotten in the state of West Virginia. Both the Charleston Gazette and the Associated Press (via Forbes.com) are reporting new accusations of judicial impropriety in a case involving Massey Energy, the coal company that was accused in Caperton of buying a WV Supreme Court Justice through campaign donations.

County Judge Michael Thornsbury is presiding over a separate pollution case involving Massey.  A motion filed by plaintiff’s attorneys to have Judge Thornsberry removed from the case alleges that seven thousand dollars donated by Massey’s lawyers to the Judge’s election campaign may have bought the company suspect judicial decisions in its favor, including denying the plaintiffs’ motion for a class-action suit, and foisting a settlement offer upon the plaintiffs with very little notice.

The Caperton decision spoke of how the appearance of impropriety could dangerously erode public confidence in the judicial system. These West Virginia cases, which highlight the problem of judges accepting campaign donations from the lawyers and parties before them, undermine the public’s confidence even further.

The Associated Press offers a useful account of this morning’s oral argument in Caperton v. Massey. Although it’s always hard to tell how a case will be decided based on the oral argument, the A.P. offers a glimpse inside the courtroom:

The Supreme Court appears to be willing to say that elected judges must step aside from cases in which there would be at least an appearance of bias if they took part.

During lively arguments Tuesday in a closely watched case from West Virginia, the court’s four liberal justices and the conservative-leaning Anthony Kennedy all expressed support for a ruling that the Constitution’s guarantee of a fair trial could require judges not to participate in a case in which there was a likelihood of bias.

Honing in on the real problem created by a system in which judicial candidates raise funds from potential future litigants and lawyers, Justice Kennedy noted:  “Our whole system is designed to ensure confidence in judges.”  As PMC has argued — and as recent polls continue to confirm — the current system is undermining that confidence.

We will post links to the argument transcripts and additional news accounts as they become available. And we will keep you up to date on developments in this very important case.

Yesterday, the Ohio Supreme Court changed one of the rules governing its judicial elections.  According to an Associated Press report on Ohio.com, judicial candidates may now make public their political party affiliations.  The rule change is part of a new Code of Judicial Conduct going into effect March 1, 2009.  There had been a ban in place on such direct advertising of party affiliation since 1995, although the rule had not been enforced since it was challenged in 2004.

Why make the change? “Ohio Supreme Court assistant administrator Rick Dove says the rule is being changed because candidates were finding ways around it. Plus, he says the court wanted to make the relationship between judicial candidates and political parties more transparent.”

This is yet another sign that judicial elections are becoming more like elections for other public offices, despite the unique role judges play in our government.  If judges really are different, shouldn’t we treat them differently from the get-go, including how they get to be judges?

According to an Associated Press report, judicial selection reform is on a lot of people’s minds.  “More than a half dozen states have either put questions relating to judicial selection to voters this year, or have legislatures planning to discuss the topic in 2009.”  This shows that people care about this issue and realize how important it is to ensure that we are using the best system to select our judges.

This isn’t a question that states answer once and for all, as the striking diversity of selection methods across the nation demonstrates.  The people should have the opportunity to reexamine the judicial selection system to make sure it is working to select the most qualified, fair and independent judges.

We want Pennsylvanians to have the opportunity to voice their opinions about how we choose our appellate judges.  A lot has changed since the people last had this opportunity forty years ago.  We believe it’s time to ask the people again — should we continue to elect our judges in expensive, partisan contests or should we use a different system that emphasizes qualifications, skill, experience and temperament?

It’s time to let the people decide.

An Associated Press article chronicles the rising costs of judicial elections, focusing on current contests in the Midwest. This sounds just like what we’ve been seeing in Pennsylvania — rising contributions from lawyers and entities likely to come before the courts, fundraising records being broken and spending by third party groups to influence elections.

The article questions business representatives and trial lawyers about why they give to these campaigns. But the issue is put into real focus by Charlie Hall of Justice At Stake who explains why requiring groups to disclose their donors and requiring judges to recuse when donors appear before them makes sense: “‘The thinking is, if you took away the financial incentives for having your judges on the court, you would dry up the money.’”

It’s time to get money out of the judicial selection process and get judges out of the fundraising business. We think Merit Selection is the way to do this for the appellate courts of Pennsylvania.