Archive for June, 2009

Jun 30 2009

Electing Judges is Absurd

Published by under Judges,Opinion

Last week, Pennsylvania Common Cause released a report analyzing political donations and campaign contributions by the gaming industry in Pennsylvania. The report reveals “that the gaming industry gave $4.4 million in campaign contributions to political candidates and committees in the state from 2001-08.”

Among the candidates who received contributions were some current and former members of the Pennsylvania Supreme Court. This particular fact prompted strong comments from Philadelphia Inquirer reader John R. Attanasio:

But how “surprising” was it that two justices made the list? Did they run for office “advocating slots gaming in the commonwealth”? They didn’t publicly. Or were they supported by casino money because the contributors hoped to influence their future actions on the bench?

Whatever their motivations, we know one thing for sure: [one of those justices] participated in the court’s ruling that struck down a statutory ban on campaign contributions from gambling interests. Even if that case was correctly decided, his being involved in it certainly doesn’t look good for him, or our legal system.

There are two lessons here: First, big political contributions can create at least the appearance of a corrupt influence on public policy. Second, the idea of judges’ running for election, and raising money from special interests to do so, is absurd.

Mr. Attanasio makes a good point: electing judges makes no sense.

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Jun 29 2009

One Dollar Is Too Much

Published by under Judges,News,Our Perspective

As the Caperton decision continues to make waves around the country, an article in the Bucks County Courier Times highlights its impact in our region.  The context is the current judicial election contest in Bucks County.  (PMC and PMCAction do not endorse or support any judicial candidates, but we report about campaign activities or candidate statements that are relevant to our work).

Dave Zellis, one of four candidates in the race for the Bucks County Court of Common Pleas, is rejecting campaign contributions from lawyers.  His opponents have declined to match this move, and Zellis has faced criticism for having contributed to judicial campaigns himself in the past, but Zellis feels vindicated by the Caperton decision.  Responding to criticism from his opponents’ supporters that the Supreme Court wasn’t sufficiently precise in defining “substantial donations,” Zellis countered:

How do you define a substantial donation. . . . To the average resident trying to make a living in this economy, $100 is substantial. This perception that judges expect something in return from the lawyers standing before them in court-even if that’s not true-gives the justice system a bad name. It has to stop.

That perception of impropriety lies at the heart of the Caperton decision and underscores a fundamental problem of judicial elections-whether the donation is $3 million or $30, it creates the perception that a judge, who is supposed to be impartial, may feel beholden to a campaign donor. As PMC Executive Director Lynn Marks explained:

When you’re in court sitting with your attorney and looking across at your opponent or opponent’s attorney who made a contribution -it doesn’t matter how much they gave; it matters that they did.

It’s true the Caperton decision doesn’t specify the dollar amount at which an appearance of impropriety begins-it doesn’t need to. One dollar having passed from any party before the court to the judge behind the bench is one dollar too much. It’s time to get judges out of the fundraising business.

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Jun 26 2009

Pennsylvania Needs Change

In the wake of the Caperton decision, WHYY’s Chris Satullo criticizes Pennsylvania’s judicial election system:

Here’s what electing judges does. It forces them to beg campaign cash from the very people who would appear before them in court. It forces voters to choose from clogged slates of unknown names. Not surprisingly, those voters fall back on dumb factors such as ballot position, ethnic surnames and who bought the most TV ads.

Judicial elections have become costly showdowns between corporate and union lobbies, with clueless voters in the crossfire.

Satullo concedes Merit Selection is preferable, but he also seeks a way to improve judicial elections.  His proposal is to use a Merit Selection commission to preclear candidates, and only those deemed qualified would then be eligible to run for election.  In addition to publicizing the commission’s findings, Satullo would require that the candidates’ campaign donors also be made public.

Satullo’s proposal may help ensure that only qualified candidates reach the bench and that the public knows more about the candidates running, but it does not solve the problems caused when money and judicial campaigns mix.  Candidates would still need to raise money, and much of the money would still come from lawyers and entities that appear frequently in the state courts.  Satullo’s requirement that donors be publicly identified does not solve the problem: that information is publicly available now and its availability is not reducing the public’s perception that campaign contributions may have an unacceptable influence on later judicial decision-making.

We agree with Satullo that change is needed, but we find Merit Selection, a hybrid combining the best parts of appointment and elective systems and adding the first-level citizens-based screening commission, is the better solution.  As Satullo says: “It’s a hybrid. And, as everybody knows, hybrids run cleaner and offer better mileage.”

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Jun 23 2009

“How Much is Too Much?” is the Wrong Question

This past weekend, the American Constitution Society held its annual conference in Washington D.C.  One of the panels addressed the United States Supreme Court’s decision in Caperton and its impact on states that elect How To Get Your Ex Girlfriend Back From Long Distance Relationship judges.

According to the Blog of the Legal Times and Gavel Grab, the participants did not reach consensus on the best way to select judges, but we’re persuaded by a comment made by Rebecca Kourlis, former Colorado Supreme Court Justice and executive director of the Institute for the Advancement of the American Legal System at the University of Denver.  Responding to Justice At Stake’s Bert Brandenburg explaining that after Caperton “the problem then becomes how much is too much for a judge to accept and still hear a case,”  Judge Kourlis argued:

[E]ven asking that question is “unseemly.” By asking what the threshold is, she said, people are saying there is an amount that is acceptable. ” Any time money is in the courtroom, you’re going to have the perception that it is affecting the judge’s decision.”

Judge Kourlis advocates a Merit Selection system as the answer.  We agree with her: the only way to solve the problems caused by money in judicial elections is to get judges out of the fundraising business.

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Jun 22 2009

“The Real Problem is the Election of Judges”

An editorial in the News & Record of Greensboro, North Carolina examines the Caperton decision and how it impacts a state like North Carolina that uses a system of public financing for its judicial elections:

Although most statewide judicial candidates participate in a public campaign financing system, that’s not a safeguard against big-money influence. Blankenship contributed only $1,000 directly to Benjamin’s campaign. He gave $3 million for so-called independent expenditures on Benjamin’s behalf. The same thing could happen in North Carolina.

The editorial contends that the problem stems from the system of electing judges.   John Martin, chief judge of the N.C. Court of Appeals and chairman of the Judicial Standards Commission, concurs.  According to Judge Martin, “‘The real problem is the election of judges.'”

Following Judge Martin’s lead, the editorial argues:

[Judge Martin is] right. Political donors influence governors, legislators and other elected officials. Judges are expected to act with greater impartiality, and they should be challenged when there are reasonable questions. But money impacts elections, and judges may not be blind to where it comes from.

As long as North Carolina holds judicial elections, it may create opportunities for situations like the West Virginia case.

We agree completely.  Elections will always cost money — even when a viable public financing system is in place.  The answer is to get judges out of the fundraising business.  Merit Selection is the way to accomplish this.

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Jun 18 2009

Caperton Matters to All of Us

In an op-ed in the Philadelphia Inquirer, PMC Board Chair Bob Heim explains the impact of the Caperton decision and outlines a solution to the poisonous effect of money on judicial elections:

So what does [Caperton] mean for those of us who don’t have $50 million at stake? A lot.

There’s no question that, regardless of the amount of money involved, if one side of a case contributed to a judge’s campaign, the other side will worry about it.

Some years ago, I was told of a lawyer who was sitting with a client in court, waiting for a newly assigned judge to hear his case. When the judge appeared, the lawyer whispered to his client that he was concerned, because the opposing lawyer was on the judge’s campaign committee and had contributed to the campaign. After a pause, the client whispered back, “So why didn’t you contribute?”

This story, cynical as it may seem, reflects the very real concerns and perceptions created when litigants and lawyers have contributed to the election campaigns of judges who preside over their cases.

Heim argues: “There is a simple solution to the problem of money in judicial elections: Get judges out of the fund-raising business by changing the way we choose them.”  His proposed solution is Merit Selection:

Merit selection would focus on the qualifications of judicial candidates. It would eliminate the unimportant but often decisive factors of the current system, such as ballot position, a “good name,” where one lives, and talent for fund-raising and campaigning. Because merit selection eliminates the need for candidates to win political-party support or raise large sums of money, it would open pathways to the bench for qualified men and women of all races, backgrounds, and experiences.

The op-ed concludes with some thoughts about why Pennsylvania has not yet stopped electing appellate court judges. Heim believes that legislatures who might be swayed on the topic haven’t heard enough from their constituents about this important issue.  But surveys consistently show the public is concerned about money and judges.  Heim urges Pennsylvanians “Let your legislators know you care.”

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Jun 17 2009

More PA Newspapers Are Calling for Merit Selection

The calls for judicial selection reform in Pennsylvania in the wake of the Caperton decision continue.  This week, the York Daily Record and the Lebanon Daily News joined the call for Merit Selection:

[W]hy do we hold elections for [appellate court judges]. . . .

It’s a good question — one we have been asking in this space for years. We agree with reformers [who] have been suggesting we move to “merit selection” of judges.

The editorials argue that the Caperton decision should convince previously reluctant legislators to support Merit Selection:

[T]he U.S. Supreme Court recently provided the perfect “excuse”: The high court ruled in a West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats.

If Pennsylvania used a merit selection process — as proposed in recently introduced legislation — we wouldn’t have to worry about running afoul of that ruling and judges wouldn’t have to try to figure out whether a $50 donation requires recusal.

Good point — Merit Selection takes judges out of the fundraising business and eliminates concerns that a judge may feel “indebted” to a party or lawyer who helped finance the judge’s campaign.  We hope Pennsylvanians will recognize that Merit Selection is the solution.

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Jun 16 2009

We Can Do Something About the Problems Caused When Money and Judges Mix

An editorial in the Austin American-Statesman minces no words in pointing out a major problem caused by electing judges:

Elections mean money. Money means problems. Elections and money and judges mean, at the least, a damaging perception of big problems. . . .

[The campaign contributions involved in Caperton] seem[ed] like a prudent investment. But we don’t think judicial races should attract investments. The American Bar Association’s Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says “A judge shall avoid impropriety and the appearance of impropriety.”

How do you do that when you have to raise money. . . to run for judge in Texas?

This is a good question, and it’s one we all should be asking in Pennsylvania.  Of course, the answer to that question raises another pressing question:  if the electoral process is itself undermining public confidence in the courts and the judiciary, what can we do about it?

The editorial notes that there is something we can do:

The U.S. Supreme Court ruling does not force Texas to do anything about picking judges. But it’s another reminder that the system warrants review.

“It will be on litigants’ minds,” former Texas Supreme Court Chief Justice Tom Phillips said of the decision. “They’ll ask their lawyer, ‘Did the other side give money to the judge? I read in the paper you can do something about that.’ ”

And now you’re reading in the paper that there is something we all should do about that. Texas’ judicial selection system should be changed.

Voters in Pennsylvania can do something, too.  Legislation has been introduced to change the state constitution to implement Merit Selection for the appellate courts. This would get appellate court judges out of the fundraising business.  We can only amend the constitution if the legislature twice passes the amendment and the public votes for it.  So, there is something we can do.  Let’s do it.

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Jun 15 2009

Philadephia Bar Association Calls for Merit Selection

In a letter to the Philadelphia Inquirer, Philadelphia Bar Association Chancellor Sayde Ladov reaffirms the Philadelphia Bar Association’s long-standing support for Merit Selection.  Noting the Caperton decision and the recent Merit Selection legislation introduced into the Pennsylvania legislature, Chancellor Ladov explains:

With the U.S. Supreme Court bringing more attention to this issue, we must work to ensure that candidates seeking a seat on our state benches are the most qualified, not the most financially or politically connected.

We whole-heartedly agree and are pleased that the Philadelphia Bar Association stands with us in calling for Merit Selection as the solution.

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Jun 12 2009

Pennsylvanians Are Talking About Merit Selection

An article in the Pittsburgh Tribune-Review explores how the Caperton decision is motivating discussion and dialouge in Pennsylvania.  According to Pennsylvania Chief Justice Ronald Castille , the decision “raises questions for an elected judiciary.”  He noted that Pennsylvania judgesand justices will need to explore whether recusal rules need to be rewritten.

But the issues go deeper than that.  People in Pennsylvania are seriously talking about bigger changes, incuding changing the way we select appellate court judges.  PMC Executive Director Lynn Marks explained, “‘[The Caperton decision] puts the issue of merit selection squarely on the radar screen of important issues for Pennsylvania to tackle.'”

State Representative Matt Smith, sponsor of the recently introduced Merit Selection legislation, concurred and noted that the United States’ Supreme Court’s Caperton decision is making some legislators turn to Merit Selection as the answer: “‘Even people who said as recently as a year ago they opposed this, now those folks see the need to eliminate money and politics from the process.'”  The best way to do that is Merit Selection.

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