Archive for September, 2009

Sep 29 2009

A Closer Look at the Money — Why Do Some Give

Published by under Judges,News

The Legal Intelligencer today examines (subscription required) the sources of the recently reported contributions to the election campaigns of Supreme Court candidates Jack Panella and Joan Orie Melvin.  Most interesting to us is the focus on one particular contributor and the motivation for its contributions.

The article notes that most of the money reported by both campaigns in this cycle came from a single source — Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers Association. This worries some observers:

“I just think too much money from a single organization is not a good thing,” said Rob Byer, a former Commonwealth Court judge and head of the appellate division of Duane Morris’ trial practice group. “The problem is, how do you get people interested in contributing the money needed for judicial elections unless they have an interest in the outcome of cases?”

Mark Tanner who leads the PAC explained the rationale for the existence of the PAC and its contributions:

Tanner said the committee was formed as a way for lawyers and law firms to support candidates without the ethical quandary that comes with writing a check directly to a candidate.

“A number of lawyers have contributed to that PAC with the goal of supporting the judges we believe in,” Tanner said. “Clearly Jack Panella received more in funding, but Joan Orie Melvin received funding, too. . . .”

“Certainly Judge Panella and Judge Melvin have staked out different ground regarding complaints brought by individuals,” Tanner said. “There were certainly opinions that showed Melvin was supportive of individual rights, but on balance we found that Judge Panella was more supportive of our view on how the justice system should operate.”

Tanner’s response only served to increase Byer’s concern:

“That’s totally antithetical to a fair system of justice,” Byer said. “Such statements don’t help the candidates they’re supporting.”

Organizational support for a candidate should be based on qualifications and experience, not whether the judge is more likely to rule in favor of a group’s interests, Byer said.

Why do individuals, organizations and PAC’s give to some candidates and not others? What motivates an individual or entity to contribute to a judicial candidate? And how do the answers to these questions affect the public perception of our courts — already severely diminished and inclined to believe that “justice is for sale?”

Tags: , , , , , , , ,

2 responses so far

Sep 29 2009

Sounding a Warning in Missouri

An editorial in the St. Louis Post-Dispatch echoes a warning sounded by Missouri Chief Justice William Ray Price, Jr. last week to the Missouri Bar Association.  Chief Justice Price urged the assembled lawyers to work to maintain the independence of the judiciary.  Without such a defense, he argued:

[T]he judicial branch of government quickly could erode into a commodity that is “bought and sold by the political power brokers of the moment.”

The chief justice warned of special interests “who demand that the courts rule on the basis of their particular ideological views.”

“For them, justice is determined by whether their special cause wins,” he said. “(O)ften they see no further than their own interest” and “know no limits to the extent they will fight or spend money to get their way,” even though it “may destroy the legal system in the process.”

Chief Justice Price urged the lawyers to educate the public about the need for an independent judiciary:

The task, he said, is to “focus the attention of the people of Missouri on the fact that, when they need a lawyer or when they must appear before a judge, the courtroom should not already be tilted against them by some special interest, no matter how rich, no matter how powerful.”

The editorial agreed with the Chief Justice’s assessment, calling it “right on the mark.”  Although the Chief Justice did not comment on the various proposals that have been put forth to amend Missouri’s Merit Selection system, the editorial writers called the efforts to change the system the “greatest single political threat to justice in Missouri.”

The editorial called for lawyers and nonlawyers to work together to preserve Missouri’s judicial selection system.  This makes sense to us — judicial selection is an issue that affects everyone.  That’s why we’ve been working to promote a dialogue in Pennsylvania about whether to change the way we select appellate judges and move from an electoral system to Merit Selection.

Tags: , , , , , ,

One response so far

Sep 25 2009

Show Me The Money

Published by under Judges,News

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.

Tags: , , , , , ,

No responses yet

Sep 23 2009

Wisconsin Takes a Hard Look at the Way it Chooses Judges

Published by under Judges,News,Opinion

Last week, we wrote about a case currently before a state court panel in Wisconsin involving Michael Gableman, a then-candidate for the state’s Supreme Court who ran an ad against his incumbent opponent. The ad was quite misleading (at best).

According to the National Law Journal, that case may be ultimately headed for the U.S. Supreme Court. In 2007, Washington State’s Supreme Court struck down a state law that prohibited false political ads about opponents as violating the First Amendment protection free speech.  If the Wisconsin Supremes now rule against Gableman’s advertisement, a conflict between the states on an interpretation of the federal constitution will give rise to a basis for Supreme Court review.

Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar’s judicial integrity campaign committee also was “highly critical” of the ad.

“I think the law is eventually going to say that, when you have a judicial election, it’s just the same as any partisan election,” Basting said.

Whichever way Wisconsin rules, the very fact that judicial candidates are mixed up in these types of questions – how low can you go when running for office and stay within your First Amendment rights – highlights the inherent flaw with judicial elections.  Bastings continued in the NLJ article:

“That’s why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges.”

What will it take to convince Pennsylvanians to take a similar hard look?

Tags: , , , , , , , ,

One response so far

Sep 22 2009

Praise from an Unusual Corner

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.

Tags: , , , , ,

3 responses so far

Sep 21 2009

And the Award For Best Blog Post Title Goes To…

What About Clients? for a post today entitled: “Is that an elected county judge in your pocket or are you just hugely happy to see me?”  The post recaps many good reasons to stop electing judges and switch to a Merit Selection system.  Here’s the core argument:

The popular election of state judges–permitted in some aspect in a clear majority of the states–give the appearance of justice being “for sale”. Elected judges can be especially “bad” for good clients who do business all over the U.S. and the world. Even when elected judges are “good”–and, to be fair, there are some great ones–state systems of popularly-elected judiciary will never inspire much confidence. Elected jurists who hear and decide business disputes are steeped in a taint.

The point: Judges should not have “constituents”, i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to dress that up.

Well, that makes sense to us.  As Pennsylvania enters general election season, with 8 appellate court seats being contested, now is a good time to ask why we are still electing judges.

Tags: , ,

No responses yet

Sep 18 2009

Should Judicial Candidates be Permitted to Deceive the Public to Get Elected?

Published by under Judges,News

Yet another reason why judges and elections should not mix, brought to our attention by our friends over at GavelGrab: In 2008, Michael Gabelman, then a Wisconsin Circuit Court judge, ran a television ad against his opponent, a then-sitting justice on the Wisconsin Supreme Court, Louis Butler, Jr. The ad was, at best, deceptive.  A three-judge panel that heard arguments in the case on Wednesday is trying to decide whether the statements in the ad, put together, constituted an outright lie.  The facts of the case, in short, via the Milwaukee Wisconsin Journal Sentinel:

A month before the election, Gableman ran an ad about a case Butler worked on as a public defender involving child sex offender Reuben Lee Mitchell.

“Butler found a loophole. Mitchell went on to molest another child,” the ad said. It then questioned whether the public would be safe with Butler on the court.

Unmentioned in the ad was that Butler won the appeal, but the Supreme Court ruled that errors in the case were not sufficient to overturn the conviction. Mitchell didn’t commit the subsequent crime until he was released on parole.

The Wisconsin Code of Judicial Conduct, like Pennsylvania’s, prohibits false or misleading statements by judicial candidates.

According to Gabelman’s attorney James Bopp, Jr., however, judicial candidates have a right to mislead voters in advertisements, even if it is ill-advised, as long as they are not knowingly misrepresenting information about their opponents. The Journal Sentinel article continues:

“I don’t think misleading is something good, (but) it can’t be sanctioned,” he said.

“The discussion, the debate, the issues that are raised, that’s for the voters to settle – not the courts. . .”

Is this why we elect judges in Pennsylvania?  So candidates can do their best to convince the public that their opponents are evil? Call it what you will – deception or lies – is this type of smear campaign an inevitable result of forcing candidates for the bench to run for their positions? It is an unfair burden to ask those meant to be impartial interpreters of the law to justify their qualifications in expensive 30-second sound bites.

Tags: , , ,

2 responses so far

Sep 17 2009

PA Gets Good News All the Way from Alaska

Pennsylvanians are working to bring reform to their judicial selection process. A state on the other side of the continent won a resounding victory defending merit selection.

A recent suit brought in federal court in Alaska had alleged that the state’s non-partisan, merit-based judicial selection procedure violated the Equal Protection Clause of the 14th Amendment because the Alaska Bar Association, not an elected official, names three of the seven members to the nominating committee that recommends judicial candidates to the Governor for appointment.

The case was dismissed on Friday.  A full written order is forthcoming. “Federal courts have never thrown out a state’s merit selection process, according to Alaska Judicial Council director Larry Cohn,” reports the Anchorage Daily News. “A ruling like that, coming barely two months after conservative activists brought the case, is the equivalent of a first-round knockout.”

This ruling should be a boon to states like Pennsylvania currently fighting for merit selection – says Jonathan Blitzer on the blog of the Brennan Center for Justice.  Pennsylvania is one of only six states that still hold partisan elections for all levels of judges.  The merit-selection system has served Alaskans well since the state’s constitution was adopted in 1956.

For more information about the merit selection bill currently before the Pennsylvania legislature, check out our extensive coverage here.

Tags: , , , , , ,

No responses yet

Sep 15 2009

Electing Judges is a Serious Problem

The AP’s report on a speech retired Justice Sandra Day O’Connor gave Monday at Seattle University Law School opens with this eye catcher:

The first woman to serve on the U.S. Supreme Court says there’s a serious problem with the government in Washington and many other states: They elect their judges.

O’Connor spoke at a conference addressing the recent Caperton v. Massey decision, which we have blogged about previously. “‘Multimillion-dollar judicial campaigns make it difficult to know whether a judge is deciding a case based on the merits or on concerns about reelection,’” opined the former Justice.

O’Connor emphasized how the increase in funding for judicial campaigns poses a threat to the neutrality of the bench: “She told a sold-out audience that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country.”

Consider that last point in light of a potentially broad decision in the case currently before the U.S. Supreme Court, Citizens United v. FEC, which could open a vast new source of corporate funds to be spent on state judicial campaigns. The argument for removing judges from the political process will only get stronger as corporate money plays a bigger role in campaign financing.

Over at Caffeinated Politics, there’s some good advice: “Wisconsin Should Listen to Sandra Day O’ Connor.”  We think that’s a good idea for Pennsylvania as well.

Tags: , , , , , , , ,

One response so far

Sep 14 2009

“Restoring Public Trust in Impartial Justice”

An editorial in the Wisconsin State Journal urges that Merit Selection is the solution to the increasingly expensive and divisive judicial elections the state has been experiencing.  Although Wisconsin currently uses a system of nonpartisan elections, the editorial notes that well-financed third parties have become heavily involved in state judicial elections and that recent First Amendment challenges may pave the way for judicial elections to become partisan contests.  The editorial identifies this as a dire move:

That raises the question: Will the state get the best impartial justice possible or the most partial justice that well-financed campaign contributors can buy?

Introducing partisan elections to the judicial branch endangers judicial independence within the government system of checks and balances. Electing judges by majority vote in partisan ballots flies in the face of the judicial branch’s responsibilities to be independent of partisan influences and to check the power of the majority from trampling on the constitutional rights of the minority.

How would you like to appear in court before a judge elected with the support of interests who oppose your case?

This is a question we have been asking in Pennsylvania, where we elect all our judges in partisan elections.  The Wisconsin State Journal agrees with us on the solution: “Adopting merit selection is the best way for Wisconsin to restore public trust in impartial justice.”

Tags: , , , ,

No responses yet

Next »