Archive for October, 2009

Oct 30 2009

Partisan Judges?

Published by under Judges,Opinion

Wait, did we say partisan judges? Isn’t the very term antithetical to the core principle of independent judges and an independent judiciary? Of course it is. But partisan judges are the necessary outcome of our current judicial election system because they are nominated by parties and run on party labels.

A column by Eric Heyl in today’s Pittsburgh Tribune-Review gives the chronology of the recent spate of “mud-flinging” in the Pennsylvania Supreme Court campaigns.  We think mud is a generous euphemism for what is being spread by supporters of the two candidates.

More importantly, though, the article asks why this contest has taken such a negative turn. The surface answer: “Orie Melvin and Panella are resorting to such tactics because polls indicate they are virtually tied, with a majority of voters still undecided.”  But why are voters undecided? Because,

“Strictly in terms of legal acumen, it matters not a whit which candidate wins. Both Orie Melvin and Panella are experienced jurists who were highly recommended by the state bar association. Presumably, neither would ever confuse torts for tarts and attempt to down a few as an afternoon snack.”

Who ends up on the bench is of great importance to us, because decisions judges make affect all of our lives. But if both judges are equally qualified, then why would this election matter at all? According to the people who are most invested in the outcome, as the article points out, the reason is because:

“Whoever wins Tuesday tips control of the seven-member court in favor of his or her party. Whoever wins gives that party a distinct advantage in the legal battles expected when new legislative district maps are drawn after the 2010 Census.”

We’ve heard it before in the last few weeks, “this is such an important race because it will determine the political balance of the Court in a redistricting year.” It is so important, in fact, that both candidates, directly or indirectly, are flinging so much mud that “the dry cleaning bill is bound to be steep.” And we just accept it.

The incredulity must be creeping in.

When did it become okay to count the number of “Ds” and “Rs” on the bench? We should be trying instead to get the fairest, most qualified, and most impartial judges possible. While partisan elections are a critical component of the legislative and executive branches, we must remember that the judiciary is not a political branch of government. But until we begin selecting our judges and justices based on merit, and stop the circus of campaign fundraising and advertising, the mud-flinging will continue, and the public will get nothing from the process but the perception that its judges are anything but impartial.

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Oct 30 2009

Where is the Public Value in Electing Judges?

Peter Decoursey, Capitol Wire Bureau Chief, asks (subscription required) “Where’s the Public Value” in the current Supreme Court Election.  After discussing the traditional low voter turn-out for judicial elections and the difficulty voters have in getting information relevant to deciding who should serve on the bench, Decoursey concludes:

So you have an election for this important court, whose decisions affect the lives of people every day, and who have a penchant for disallowing legislation. And it’s an election where four out of five Pennsylvanians will sit on their hands. And that one in five or less who does vote won’t know much about either candidate.

Decoursey notes that both candidates — Republican Judge Joan Orie Melvin and Democratic Judge Jack Panella — are qualified to serve on the Supreme Court. He also describes their current advertising war which has turned this campaign nasty and divisive in its homestretch: “And now that both campaigns are acting like campaigns, each said the other’s attacks violated judicial ethics canons.” We’re left, then, with an ugly campaign that is not even likely to bring out the voters.  So, Decoursey asks, what’s the point?

He boils this question down to a basic one (and one we’ve been asking for quite awhile): why are we electing Supreme Court justices?

Since both Melvin and Panella are clearly the type of candidates who would get appointed to a Supreme Court slot if we did it that way here, you have to wonder: what is the value of this election?

Few will vote with any real knowledge of how the future rulings of Panella and Melvin may differ. Few will vote, period. . . .

So we would get the same choice of candidates, but miss out on the unseemly fund-raising from lawyers who will appear before them later, and the wonderful negative ads. . . .

So what is the value of this election? Unlike a presidential or gubernatorial or congressional election, nobody knows the candidates or issues. No issues get vetted or get momentum. There is no real public debate of any value.

And after someone wins on Tuesday, nobody will really know why they won.

It’s not clear where the value lies in this process.

Decoursey has really said all that needs saying.  That leaves us with just this thought: isn’t it time to make these important decisions in a manner that reflects how important they are? Elections aren’t working; Merit Selection is the answer.

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Oct 30 2009

Don’t Elect Statewide Judges

John Baer of the Philadelphia Daily News argued in his column earlier this week that: “THE NASTY RACE for state Supreme Court is making yet another strong case for not electing statewide judges.” Baer notes that the recent dispute between Supreme Court candidates Jack Panella and Joan Orie Melvin over campaign contributions and their current tv ad war (we posted about these ads yesterday) is strong evidence that the way we select judges needs to change.

First Baer picks apart a Panella ad claiming that Melvin is dangerous for women, especially when it comes to their healthcare decisions:

[W]hen I ask, I’m referred to a May Superior Court case involving consensual sex between a physician and a female patient with psychological problems who says she got worse thereafter.

The court ruled in the woman’s favor, suggesting she might well have a case of medical malpractice. Orie Melvin dissented.

Sounds bad. But the dissent was based on interpretation of law as applied in similar cases and suggested that while the (general practitioner) doc’s acts were “unethical,” they don’t constitute medical malpractice. A woman, former Judge Maureen Lally-Green, wrote the dissent and Orie Melvin joined it.

Seems a stretch that disagreeing on points of law in a case of consensual whoopee endangers women’s rights and safety.

Then Baer turns to the Orie Melvin ad that claims Panella is dangerous for children because he served on the Judicial Conduct Board when a complaint related to the Luzerne County scandal was filed:

[Orie Melvin’s ad] all but paints [Panella] as personally shackling, imprisoning and feeding gruel to the victims. “Jack Panella could have stopped the abuses,” her ad says.

It’s just that the Associated Press last month quoted the U.S. attorney prosecuting the case as saying the board acted properly in ’06, quickly forwarding an anonymous complaint. And yesterday, Panella’s campaign released a letter from five former board members saying the same thing. Seems a stretch to lay the collapse of a county system at the feet of a single state judge.

Finally, Baer mocks Orie Melvin’s claims of being a reformer: “Orie Melvin insist[s]”I’m no insider” (which is like Bret Favre saying he’s a rookie since he’s on a new team).”

Baer shifts responsibility back to we the people to do something about all this: “Ask yourself if there just might be a better way to pick the people who sit on our highest court.”

Good question, John.  If voters are honest with themselves, they know the answer is yes. Elections aren’t working; it’s time for Merit Selection.

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Oct 29 2009

Elections Bring out the Worst in our Best Judges

Just a few days ago, we reported on a negative banner ad that ran briefly and was sponsored by the Republican Party of PA in support of its judicial candidates. That banner featured a Soviet-style hammer and sickle inside the “O” of Obama. No, the president is not running as a PA judicial candidate – what relevance he has to our state judicial elections is unclear. What is clear is that the campaign between Democrat Jack Panella and Republican Joan Orie Melvin is getting ugly very quickly.

In the introduction to that post, we described the tone of a typical negative television ad – “clichéd black and white low-angle images of the opposing candidate, dramatic fade-ins of damning headlines, and music that would make Alfred Hitchcock proud.” Yesterday, we planned to write about a news report from Pittsburgh’s Channel 4 ABC news covering a TV ad sponsored by Panella’s campaign, which follows the negative campaign playbook almost to a tee: ominous tones, dark backgrounds, and most importantly – questionable statements about the opposing candidate.  The ad, according to the report, “has tough words, but little documentation to back up the attacks.”

That was yesterday. Since then, articles have been streaming in to our news desk about how this race keeps getting uglier, and how attacks, accusations, and negative ads are oozing from both sides. At least here in Philly, where we are all glued to our TV sets, these ads are getting a lot of attention. The gist of the ads getting airtime: Orie Melvin is bad for women; Panella is bad for children.

The Republican Party of Pennsylvania is now airing an ad which blames Panella for failing to stop the cash-for-kids scandal in Luzerne from happening. The ad claims, “Judge Panella turned his back on these children when he and the Judicial Conduct Board received a complaint about the judges.” But as John Baer at the Philadelphia Daily News pointed out, “[It] seems a stretch to lay the collapse of a county system at the feet of a single state judge.” Especially because the U.S. Attorney confirms the conduct board referred the issue to the feds, he explains.

But the poop-flinging is coming from both sides. In addition to the ad discussed in the Channel 4 piece, Panella’s campaign is running another doozy, with a “Warning for women,” that “only Panella will protect women in their healthcare decisions.”

Now, the Republican Party of PA is condemning the Panella ads, and accused him of violating the Pennsylvania Code of Judicial Conduct, while at the same time continuing to lay it on thick about Panella’s position on the Judicial Conduct Board during the Luzerne fiasco. Is this double speak, or just a “we’re bad, but they’re worse” tactic (not unfamiliar to Orie Melvin, who recently condemned  the $1 million Panella received from the trial lawyers while brushing off the $125 thousand her campaign received from the exact same group)?

Today, the Pittsburgh Tribune-Review quoted our own Lynn Marks, executive director of Pennsylvanians for Modern Courts.

“The ads diminish the candidates and the judicial office in the minds of the public,” Marks said. “The reality is, it is very hard to educate the voters about what the courts do and about what candidates do and why they’d be good judges. These ads do not help the voters.”

We’ve met Panella and Orie Melvin, and they both strike us as honorable, decent people. One of them will soon be a justice on our state’s Supreme Court. The editorial boards of the state’s major papers seem to concur, as all noted in their endorsements that either candidate would be a good choice, and that both are highly qualified (except for this paper which refused to endorse any candidate because it is calling for the end to judicial elections). But campaigning brings out the worst in everyone. To quote Mr. Baer again:

So when you see judicial campaigns driven by special-interest-funded ads that stretch credulity . . . ask yourself if there just might be a better way to pick the people who sit on our highest court.

There is a better way. It’s called Merit Selection, and it protects the judiciary from all these negative side effects of campaigns and elections. We think it’s time Pennsylvania comes out of the 19th century, when our current election system was adopted, and move to a system that doesn’t debase the members of the judiciary by pushing them to stoop so low.

NOTE: JudgesOnMerit, PMC, and PMCAction are non-partisan and our cause is a non-partisan one. We do not support any judicial candidates or political parties, and we are equally critical of all problems with the judicial selection process.

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Oct 29 2009

Paper Refuses to Make Judicial Endorsements — Backs Merit Selection Instead

An editorial in the Times-Tribune (Scranton) makes the case for replacing judicial elections with Merit Selection for the appellate courts.  Exhibit A is the current partisan — and in the last few days nasty — race between Republican Joan Orie Melvin and Democrat Jack Panella for the vacancy on the Pennsylvania Supreme Court:

Judge Orie Melvin lamented during a recent debate that Judge Panella is heavily backed by trial lawyers, who have donated about [$1 million] to his campaign. But she has received about [$125,000} from trial lawyers, so the offense apparently is one of degree rather than commission.

That points to one of the key problems with appellate judicial elections: they are funded primarily by people who are likely to appear in court before the winning candidate, or who have frequent business before the appellate courts. . . .

There would be no large donors if judges were appointed based on qualifications.

The editorial goes on to talk about how the electoral process overly politicizes judges who are supposed to be above politics.  Focusing on the upcoming legislative redistricting and the political parties’ emphasis on the importance of the Supreme Court election (see, e.g., Karl Rove ‘s piece in today’s Wall Street Journal) and the ultimate numbers of Republicans and Democrats on the Supreme Court, the editorial argues: “That shouldn’t matter, but in Harrisburg it’s all that matters.”

Finally, the editorial reminds us that voters often lack relevant information about the candidates, therefore leading to random and irrelevant factors such as ballot position, county of residence, gender, name recognition, and political party influencing who reaches the bench.

The Times-Tribune closes with this impressive claim: “Because we favor merit selection, The Times-Tribune does not endorse appellate judicial candidates.” We appreciate the support for Merit Selection and thank the editorial board for clearly demonstrating why this current election makes the case for reform.

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Oct 27 2009

Let’s Talk About Money

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-GazettePittsburgh Tribune-Review, The Philadelphia Inquirer/APCapitolwire (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.

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Oct 26 2009

Money is Poison

Published by under Judges,News

We’ve been talking about the poisonous influence of money in judicial elections for a long time.  Now, the candidates are talking about it, too.

According to John Micek over at Capitol Ideas, Supreme Court candidate Joan Orie Melvin made this a topic of her address to the Press Club today.  She complained about the $1 million contributed to the campaign of her opponent Jack Panella by the Philadelphia Trial Lawyers’ PAC, the Committee for a Better Tomorrow. When asked about the $125,000 she also accepted from the PAC, she “claimed there was no comparison between the money she accepted from the trial bar and the money her competitor received.”

But Orie Melvin’s initial characterization of the contributions to her opponent offers a more convincing take on the perception contributions to judicial elections create: “”It’s pay-to-play, it’s justice for sale.’” This is surely what the public sees when the money is discussed, and it doesn’t matter how much is at issue.  It’s the fact of the contribution that makes an impression on the public.

Micek concludes his post with a discussion with PMC’s Shira Goodman:

What matters. . . is the public perception that money buys access to courtrooms – period.

“In our mind, enough is enough already,” she said.

We’ve always tried to make the point that judges are different from other public officials. As such, they should be selected differently. The way it stands now, we treat judicial candidates pretty much like other candidates.  Doing so makes it harder for the public — and even the judges themselves — to recognize the special role judges play in our system of government.  The more we blur the lines before judges reach the bench, the more blurred the lines stay.  Putting on the robe can’t be a single magic moment.  The entire process of becoming a judge should speak to the special nature of the judicial function.  Money is poison.

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Oct 26 2009

Supreme Court Candidate Debate Round-Up

Published by under Judges,News

There’s been great coverage around the state of the debate Pennsylvanians for Modern Courts (PMC) co-sponsored with the League of Women Voters of Pennsylvania and students at Temple’s Beasley School of Law.  Lynn Marks, executive director of PMC, after a glowing introduction by Beasley’s Dean JoAnne Epps, moderated the panel of questioners. PMC’s associate director Shira Goodman, also of, was one of four panelists who asked the candidates questions.  The panel did not pull any punches, and neither did the candidates.  See the coverage below for more details.





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Oct 22 2009

Supreme Court Candidates Face Off

Published by under Judges,News

PMC, the League of Women Voters of PA and the Temple University Beasley School of Law Student Bar Association co-sponsored a debate between the candidates running for the vacancy on the Pennsylvania Supreme Court.  The candidates, Superior Court Judges Jack Panella and Joan Orie Melvin, answered questions about campaign contributions, recusal decisions, the Luzerne County Courthouse scandal and the role of the Supreme Court in deciding cases and administering the court system.  Although the candidates agreed on several issues, their exchanges — particularly about this campaign — did become heated.

Read PMC’s press release about the debate.  For those who missed attending live, the debate will be televised on the Pennsylvania Cable Network (PCN) Sunday Oct. 25 at 4:00 pm; Monday Oct. 26 at 10:00 pm; Thursday Oct. 29 at 10:00 pm; Sunday Nov. 1 at 3:00 pm; and Monday Nov. 2 at 4:00 pm.

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Oct 21 2009

Why Is PMC Sponsoring a Debate Between the Supreme Court Candidates?

Tomorrow, Thursday October 22, PMC is co-sponsoring (with the League of Women Voters of PA, the Student Bar Association of the Temple University Beasley School of Law, Temple Law Republicans and Temple Law Democrats) a debate between the Supreme Court candidates.  Some have questioned why we are doing so in light of our efforts to replace judicial elections with a Merit Selection system for the appellate courts.

The answer is simple.  As long as Pennsylvania continues to elect judges, it is part of PMC’s mission to educate voters and provide resources that assist them in making decisions during judicial elections.  We sponsor candidate debates; publish lists of questions for voters to consider and identify resources that can provide answers; and participate in other programs aimed at educating voters.

We hope that by doing so, we help voters feel more prepared to make critical decisions about who should serve on our courts.  In addition, we believe that as voters learn more about the process, they will come to realize that electing appellate judges in partisan contests just doesn’t make sense.

We hope you will join us tomorrow at noon at Temple University’s Beasley School of Law for the debate between candidates Jack Panella and Joan Orie Melvin.  More information is available here.  For those who can’t join us in person, PCN (the Pennsylvania Cable Network) will be airing the debate repeatedly in advance of the election.  The schedule includes the following airtimes: Sunday Oct. 25 at 4:00 pm; Monday Oct. 26 at 10:00 pm; Thursday Oct. 29 at 10:00 pm; Sunday Nov. 1 at 3:00 pm; and Monday Nov. 2 at 4:00 pm.

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