Archive for July, 2009

Jul 29 2009

Questioning Elections in Indiana

Published by under Judges,Merit Selection,Opinion

An editorial in the Fort Wayne Journal Gazette suggests that Merit Selection might be the solution to the problems of money and politics influencing judicial selection. Faced with a mixed system in which some judges are elected in partisan contests, others run in nonpartisan elections and still others reach office through a Merit Selection system, the editorial opines “Hoosiers and their lawmakers should reconsider whether having judges run for office is really the best way to achieve justice.”

The editorial focuses on Allen County—which contains Fort Wayne. That county had appointed judges until the 1980s, “when a state lawmaker – with little public demand – changed the method to a non-partisan election.” Further:

“[I]ncumbent Allen County judges are rarely challenged and seldom – if ever – defeated. More telling, many judges retire midterm, when their successor will be appointed. Allen County has a judicial nominating commission that examines applications and submits three names to the governor, who appoints the judge.”

The editorial notes that this system could be easily adapted into a Merit Selection system to fill all judicial posts. The editorial board is on the right track—Merit Selection is worth a look in Indiana counties that elect their judges, and in plenty of other places as well.

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Jul 27 2009

Nevada Should Look to Merit Selection

Former Nevada Chief Justice Bob Rose urges Nevada to adopt Merit Selection.  His piece in the Reno Gazette-Journal argues that the Merit Selection system currently in place to fill interim vacancies should be used to fill all judicial posts.

First, Rose explains that the current Merit Selection system has done a good job finding qualified candidates to fill interim vacancies:

The commission has a balanced membership from all areas of the state, Republicans and Democrats, and half are non-lawyers. . . .

Members receive more information about the candidates that voters do (health, financial and bar association records) and spend days reviewing the information in the selection process. . . .

The commission works hard to select the three best qualified candidates, and the governors have in good faith tried to pick the best.

Rose also notes that money is a tremendous problem in the electoral system that would be eliminated by Merit Selection:

[M]oney plays an enormous role in the present process of electing judges and it is impossible to effectively regulate it.  First, no restriction can be placed on a candidate’s use of his or her own money — this the U.S. Supreme Court has clearly stated.

The candidate with more money will always have a great advantage in an election. . . .

Further, no restriction can be placed on private groups or individuals unconnected with the candidates from running their own campaign for or against a candidate.

Rose closes with this very practical, common-sense argument:

[T]here is no perfect way to select judges, but we should not throw our hands in the air and quit trying to improve the system.

We agree, and that’s why we keep working to implement a Merit Selection system for Pennsylvania’s appellate courts.

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Jul 23 2009

Setting Records in Wisconsin

Published by under Judges,News

An AP report on WCCO in Wisconsin informs us that Chief Justice Shirley Abrahamson set a new fundraising record in her recent reelection campaign.  She raised $1.47 million. This was enough to break the $1.45 million record set just two years ago in another race for the state Supreme Court.

Where did Chief Justice Abrahamson’s donations come from? “Abrahamson loaned her campaign $50,000 and raised the rest from a range of supporters, including some lawyers who appear in her courtroom.”

This is just a taste of what’s to come in judicial elections — increased fundraising from the usual donors — lawyers, lawfirms and entities who frequently litigate in the state courts.

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Jul 22 2009

Something’s Still Rotten in the State of West Virginia

Published by under Judges,News

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.

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Jul 20 2009

A Little Bit Can Go a Long Way

Published by under Judges,News

A judge in New Orleans is facing removal from the bench because she is alleged to have made a damages award to a plaintiff not based on the merits of the case but because she wanted to help his lawyer, who had contributed to her election campaign.  Interestingly, the numbers at issue here — both the damages award and the campaign contribution — are pretty low, especially by Caperton standards.  But that’s the point, it doesn’t matter how much the contribution is — a little bit can go a long way.

NOLA.com reports that the Louisiana Supreme Court will hold a hearing on whether to remove Judge Joan Benge from the bench because of a 2001 car accident case in which she awarded $4,275 to a plaintiff .  Benge reportedly was leaning towards making no award, but decided to award damages because of her “affinity” for the plaintiff’s lawyer and upon advice from a fellow judge who ultimately himself served time for corruption.

Testimony submitted to the Judiciary Commission, which investigated Benge and recommended her dismissal, reveals the following interactions regarding the damages award:

[W]hile considering how to rule, Benge called [then Judge] Bodenheimer to vent about the trial. She said [the plaintiff] likely would get nothing from the suit but for her affinity for [John] Venezia [the plaintiff's lawyer], who had contributed $925 to her campaign for judge and later gave her another $1,425.

“I’m struggling with it,” she told Bodenheimer, “because if it wasn’t for Venezia, you know, I’d probably zero it. It would probably be my first zero.”

. . . . And at a Christmas party that year, after Benge issued her ruling, Venezia recalled her telling him, “I didn’t like the case. . . . The only reason I gave you anything was because of you.”

Venezia’s contributions amounted to about $2300. That’s it.  The Judiciary Commission itself noted:

“She could have made the award because Mr. Venezia had contributed to her campaign, because she hoped to receive his political support in the future, because she hoped to receive, or did not want to lose, the political support of others in the future, because she personally liked Mr. Venezia, or because she felt a loyalty to Judge Bodenheimer.

“It is not clear what her reason for making the award was. What is clear is that the award was not based on Judge Benge’s assessment of the evidence in the case.”

And that’s the point.  It’s not clear exactly why  Benge ruled as she did, but the fact of the contribution and her own admission to the contributor demonstrate that her decision was not guided by the law and the facts of the case.

This case may be unusual because of the record of virtual admissions by Benge.  But even in cases where the answers aren’t so apparent, questions will arise when judges preside over cases involving campaign contributors.  As this case demonstrates, it’s not the amount of the donation, it’s the fact of the donation. There’s only one solution: get judges out of the fundraising business.

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Jul 17 2009

Who Are they Again?

Published by under Judges,Opinion

An editorial in the News & Record of Greensboro, NC highlights one of the big problems with judicial elections: voters don’t have a lot of information about the candidates running for the bench.  The editorial makes its point by demonstrating how much people know about U.S. Supreme Court nominee Sonia Sotomayor as opposed to the North Carolina Supreme Court justices they presumably voted for:

It’s a safe bet that most Americans know at least a few basic things about Sonia Sotomayor. . . .

In contrast, how many North Carolinians could name even one member of their state Supreme Court?

Probably very few, even though the voters elected each of the court’s seven justices. Judicial elections just don’t generate much interest. As a result, voters choose North Carolina’s Supreme Court justices, and judges at lower levels of the court system, generally with less information about the candidates than they have about someone nominated to serve on the U.S. Supreme Court, for whom they can’t vote.

This lack of information, which plagues all states that elect judges, is a problem because conscientious voters crave information on which to base decisions.  Instead, judicial elections provide them with party affilitation, county of residence and some yard-sign or television slogans which usually provide no guidance in determining if someone will make a good judge.

This is just one of many reasons judicial elections don’t make sense.

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Jul 15 2009

Making the Case for Merit Selection

In a guest column for the Times-Tribune in Scranton, PMC Board Chair Bob Heim makes the case for Merit Selection.  Heim begins with a discussion of the U.S. Supreme Court’s decision in Caperton and then offers this insight about the problematic role of money in judicial elections:

There’s no question that, , if one side of a case contributed to a judge’s campaign, the other side will worry. . . .

The presence of money in judicial elections may not violate the Constitution. But it violates our citizenry’s trust in the impartiality of those who sit in judgment.

Heim continues: “There is a simple solution: Get judges out of the fund-raising business by changing the way we choose them.”  He points out that in addition to solving the money problem, Merit Selection focuses on the qualifications of the candidates and ensures that judicial selection would on longer be based on the irrelevant factors that so often have a big influence in judicial elections, like ballot position, county of residence, and fundraising prowess.

Heim concludes by noting that the legislature needs to understand that judicial selection is an important issue to the people of Pennsylvania. He urges: “Let your legislators know you care.”

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Jul 14 2009

A Good Place To Start

The Charleston Daily Mail reports that the Independent Commission on Judicial Reform appointed by Governor Joe Manchin will be focusing on “judicial selection, campaign finance rules, and the right to appeal.”  Since these have been major issues in West Virginia recently, this seems to us like a good place to start.  We hope that Pennsylvania will also have an opportunity to focus public dialogue, study and debate on judicial selection.  Such discussion is the first step toward allowing the people to decide for themselves the best way to select judges.

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Jul 10 2009

Money and Judicial Selection Shouldn’t Mix

Steve Jagler’s editorial in OnMilwaukee.com raises some important questions swirling around now that recusal is a hot topic.  These questions highlight the ongoing problems with judicial elections and the need to find a solution that gets judges out of the fundraising business altogether.

Jagler notes that the Wisconsin Supreme Court has been presented with two proposals on amending recusal rules.  The first, proposed by League of Women Voters of Wisconsin Education Fund and supported by the Wisconsin Democracy Campaign and Common Cause in Wisconsin, urges the Court to enact a rule requiring judges to recuse in any case where the litigants contributed $1,000 or more to the judge’s campaign or tried to influence the election through mass communications.

Jagler notes that if the Court adopts the $1,000 contribution trigger for recusals,:

[T]here could be a whole lot of recusing going on. According to a study by the Wisconsin Democracy Campaign requested by BizTimes Milwaukee, Wisconsin justices have received the following numbers of individual campaign donations of $1,000 or more: Shirley Abrahamson, 341; Annette Ziegler, 95; Mike Gableman, 71; Pat Roggesack, 42; Patrick Crooks, 38; and Ann Walsh Bradley, 37. Only Justice David Prosser Jr. has not received any individual donations of $1,000 or more.

However, the campaigns of all of the Wisconsin justices have received donations of $1,000 or more from political action committees (PACs).

More troubling is Jagler’s prediction of what will ensue on the campaign contribution front if the $1,000 trigger is adopted: “We’ll see a spike of checks for $999 donated to judicial candidates.”  This gets at the very heart of the issue: the problem is not the amount of the contribution, but the fact of the contribution.

The second proposal to the Wisconsin Supreme Court, made by the Wisconsin Realtors Association, urges the Court to amend the judicial code to explain that recusal shall not be required solely because a party endorsed the judge or made a lawful contribution to the judge’s campaign.  This, in essence, does nothing to address the problem of money in judicial elections. In fact, it attempts to ignore the fact that money is a problem.

Money and judicial selection shouldn’t mix. There should never be an instance where a party or lawyer has to be concerned that the opposing side contributed monetarily to the presiding judge’s campaign for the bench.  As long as we continue to elect judges, this problem will not go away. The answer is to get judges out of the fundraising business. Merit Selection accomplishes this.

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Jul 09 2009

Advice from Two Respected Jurists

The Grand Junction Daily Sentinel reports that during the Aspen Ideas Festival last week, U.S Supreme Court Justice Stephen Breyer and former Justice Sandra Day O’Connor offered strong words for the states that elect judges. The Justices’ words should encourage the public to engage in a serious dialogue about judicial selection reform.

Justice O’Connor, a long-time supporter of Merit Selection, urged, “‘I think you can have very fair (merit-based) systems and I wish more states would do it.’”

Justice Breyer spoke about the Caperton case and noted that campaign contributions are “manifestations” of a larger problem: “‘It is that people more and more think of judges as junior-league politicians.  All the messages that come to people tell them that.’”

The electoral process, complete with party endorsements, campaign-trail rhetoric, television ads and robo calls, and the fundraising required to fund a state-wide campaign certainly add to the perception that judges are just like other elected officials.  We’ve been trying to get the message out that judges are different, and that they should be selected differently.

We hope the words of these respected jurists will help foster more serious discussion about implementing Merit Selection.

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