In addition, the Philadelphia Inquirer has a full report on the news conference and quotes the Governor’s exclamation that there is “no excuse for not moving the legislation this year and putting the question on the ballot by late 2011.” The Inquirer also quoted PMC Executive Director Lynn Marks who explained that Merit Selection is designed to get the most qualified, fair and independent people on the appellate courts.

The Pittsburgh Post-Gazette notes that the Governor is seeking to give a jumpstart to the Merit Selection legislation.  The article quotes local State Senator Jim Ferlo on the need for reform: “The impact of the electoral system on the impartiality of judges puts the fairness of our courts in question, and now requires judicial candidates … to raise millions of dollars to run their campaigns.”

Additional coverage of the Governor’s press conference and the call for action can be found at WHYY 91 FM, the Citizens’ Voice, the Times Leader, the Patriot-News, and Gavel Grab.

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.

Merck’s decision came partly in response to the recent U.S. Supreme Court ruling in Caperton v. Massey. Writing for the majority, Justice Kennedy said:

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

In spite of the Court’s strong warning that campaign contributions may jeopardize a litigant’s right to a fair trial, judicial fundraising is a necessary evil in states that continue to elect their judges through partisan elections.

Merck’s decision to remove itself from this politicized arena is a welcomed step in the direction of greater judicial accountability. Merck’s leadership on this issue may encourage other major companies to follow suit by extracting themselves from the money game as well. Businesses, as well as all other potential litigants, should not feel pressured to compete for justice with their checkbooks.

In Pennsylvania, campaign spending on judicial elections has skyrocketed. Notable (and notorious) was this year’s Supreme Court election in which the two candidates raised well over three million dollars combined. Pennsylvanians need to take a hard look at where all this money is coming from and how it is impacting the fairness of our courts.

]]> http://judgesonmerit.org/2009/12/21/merck-stays-out-of-judicial-campaign-contribution-game/feed/ 1 http://judgesonmerit.org/2009/12/09/media-summary-of-merit-selection-hearing/#utm_source=feed&utm_medium=feed&utm_campaign=feed http://judgesonmerit.org/2009/12/09/media-summary-of-merit-selection-hearing/#comments Wed, 09 Dec 2009 21:05:33 +0000 David http://judgesonmerit.org/?p=532 Bills:

• House Bill 1619 and House Bill 1621

News and Press:

• Philadelphia Inquirer: House urged to end election of Pa. judges, Amy Worden. Lynn Marks quoted.
• WHYY: Pa. having doubts on wisdom of electing judges, Scott Detrow. Robert Heim, PMC Chairman, quoted.
• PR Newswire: Governor Rendell Endorses Judicial Merit Selection Reform Bill
• Capitolwire (Subscription Required): House committee weighs benefits of appointing appellate judges, Laura Olson. Lynn Marks quoted.

Blogs and Opinions:

• Gavel Grab: Merit Selection Urged at Pa. Hearing; JAS Submits Pa. Testimony on Merit Selection
• It’s Our Money Blog/ Philly.com: Rendell pushes for merit selection of judges

And of course, read our take on the hearing here.

We will post more comprehensive coverage of the hearing, including transcripts of testimonies, within the next few days.

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 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.

Former Wisconsin Justice Louis Butler Jr. . . . . nominated by President Obama to the federal bench in Wisconsin, was asked by a GOP senator at a confirmation hearing in Washington about his defeat in two elections for the state’s high court.”

We can only imagine the very slight smile that must have formed on the corner of Butler’s lips as he made this reply:

‘After 16 years on the bench, I may be a better judge than politician,’ replied Butler, according to an article in the Milwaukee Journal Sentinel.”

Butler was defeated last year in an ugly contest with then-Judge Michael Gableman, who now faces an ethics complaint accusing him of lying in a campaign ad aired against Butler.”

Some judges would no doubt make excellent and effective politicians, and some politicians would likely make fine judges. But we think using mere “electability” as the decisive factor in how we choose our judges leaves too much to chance, and gives too much weight to factors other than a candidate’s qualifications.  For choosing our judges, being a good politician should not be more important than being fair, impartial, and wise. Judges should be chosen on merit.

Pennsylvanians for Modern Courts (PMC) has joined the Justice at Stake Campaign and 19 other judicial reform groups across the country, in filing an amici curiae (“friends of the court”) brief with the United States Supreme Court in Citizens United v. FEC case on September 9. The case focuses on campaign finance laws regulating corporate spending in elections.

The Citizens United case should be of particular concern to everyone worried that money is polluting the political process.  The Court is being asked to remove restrictions on campaign spending by corporate groups.  Such a decision “could trigger an election spending war in which companies, unions and other groups could tap directly into their treasuries.”

This would remove a major bulwark preventing runaway spending in judicial elections, a system already suffering from the corrupting influence of campaign cash. Said Justice at Stake’s executive director Bert Brandenburg: “The public needs to be confident that our courts are fair and impartial, and not swayed by election cash. No one wants justice to be for sale.”

As the brief argues:

“Special interest spending on judicial elections-by corporations, labor unions, and other groups-poses an unprecedented threat to public trust in the courts and to the rights of litigants. . . Unleashing corporate treasury funds on judicial elections . . .  will distract judges from their most important job: guaranteeing impartial justice to the litigants who come before them.”

PMC is proud to join the Justice at Stake Campaign and our other partners in opposing any steps that would increase the influence of money in the judicial selection process. Our judges need to be concerned with following the law, not the currents of election cashflow.

More information about Citizens United is available on Gavel Grab.

‘The Supreme Court’s Caperton decision is a narrow ruling concerning an extreme situation, but it highlights the fundamental inconsistency between selecting judges in partisan elections and the principle, required by constitutional due process, that judges not only must be impartial, but must maintain an appearance of impartiality.’

Beyer explained that he was hopeful that the decision would generate support for the adoption of Merit Selection in Pennsylvania.

The New York Times’ report on the decision can be found here; today’s article focuses on the probable impact of the decision.  The Times’ editorial on the decision concludes:

Chief Justice Roberts is fond of likening a judge’s role to that of a baseball umpire. It is hard to imagine that professional baseball or its fans would trust the fairness of an umpire who accepted $3 million from one of the teams.

Our friends at Gavel Grab offer extensive coverage of the decision as well as important analysis.