Archive for November, 2009

Nov 25 2009

Merit Selection Hearing Scheduled for December 7

Good news from the House Judiciary Committee’s Subcommittee on Courts: a hearing on the Merit Selection legislation will be held in Harrisburg, Monday December 7 from 9:30 am – 12:30 pm in the Irvis Building, Room G-650.  We thank Subcommittee Chair Don Walko for scheduling the hearing, as well as House sponsors Matt Smith (D, Allegheny) and Will Gabig (R, Cumberland) for their support and leadership.

The hearing is the first step in the legislative consideration of the bills and a critical part of the dialogue Pennsylvania needs to have about changing the way we choose appellate court judges.  Please let your representatives and the members of the House Judiciary Committee know how important this issue is to you.

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Nov 24 2009

Lady Justice is nonpartisan, but the PA court elections are not

Published by under Judges,Opinion

In an excellent op-ed piece in yesterday’s Pittsburgh Post-Gazette, PA Supreme Court Justice Debra Todd contends that just as Lady Justice is Nonpartisan, so too are the justices of the Pennsylvania Supreme Court immune from partisan politics when ruling from the bench. We agree with Justice Todd that partisan politics should have no place in a court of justice. We trust, as does Justice Todd, that most judges are able to maintain impartiality in their decisions.

Yet while we share her dismay at the fact that so much attention during the recent election was devoted to the political balance on the bench, and agree this reflects a “fundamental misunderstanding of the judicial branch of government in Pennsylvania,” we think it has even more to do with the way we select judges in our state. If we expect our highest judicial officers to completely separate their political affiliation from their judicial decision-making, why do we elect them in hotly-contested, extravagantly-funded partisan elections?

Although, as Justice Todd says, “vacancies on the courts are filled by judicial elections . . . in 39 other states,” that widely-quoted statistic is misleading as it encompasses all levels of the courts and includes those states that use retention elections.  In fact, Pennsylvania is one of only six states, along with West Virginia, Alabama, Texas, Illinois, and Louisiana, that elects all of its judges, from Supreme Court down, in contested, partisan elections where judges run under party labels.

While we hope that no one party exerts political control of the court, is the public’s perception that political affiliation influences judges not the inevitable outcome of a system in which so many vote for judges strictly along party lines, often by pulling a straight-party lever? One can’t blame the public and the media for assuming the court is a political institution while we continue to select our judges in partisan elections.

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Nor should we be surprised that Pennsylvanians “conflate[ ] the election of justices . . . with the role of service as a justice.” Why else would political parties spend millions on getting their candidates into office? The Republican Party, for example, spent untold hundreds of thousands of dollars paying for all of Orie Melvin’s TV commercials. In fact, both parties emphasized the importance of the Supreme Court election to party members because of the upcoming reapportionment of legislative districts.

In the Justice’s own eloquent words:

The statue of Lady Justice, whether displayed as the Greek goddess Themis or the Roman goddess Justitia, is often depicted holding the balanced scales of justice and wearing a blindfold. This depiction of Lady Justice embodies the ideal that justice must be rendered without reference to money, power, fear, favor, identity or political party. As a sitting justice of the Supreme Court of Pennsylvania, I am confident that Lady Justice is neither a card-carrying Republican — nor a Democrat.

Lady Justice is certainly neither a Republican nor a Democrat. But we highly doubt that she got her particular spot on the pantheon of gods in a partisan election. Short of a divine intervention, we think merit selection of appellate judges is a far better alternative to partisan elections if we seek Justice Todd’s ideal of a truly nonpartisan court.

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Nov 20 2009

In times of widespread corruption, we must call for reform

Published by under Merit Selection,News

Like night follows day, scandals in Harrisburg are followed by cries for reform. This time, though, cries are coming from an unusual place: the governor’s office.

So begins an op-ed published in today’s Daily News. The piece recaps the Governor’s call for reform, which includes a change to merit selection of judges. What’s perhaps unusual about this opinion is its optimism. The editors acknowledge the public’s typical reaction to calls for reform, apathy, especially from a governor in his last year in office, but points out why this time things may be different:

[T]hese are not normal times. . . . In the past two years, more than two dozen people from both parties have been charged with fraud and corruption. That includes five current or former elected officials, three of whom held important leadership positions within the Legislature. Those allegations come on the heels [of] the 2005 pay-raise scandal, when lawmakers voted for an increase in the middle of the night. Public outrage forced them to repeal the move.

And how can we forget one other taint on our leaders: what’s been called by our newest Justice-elect the “worst judicial misconduct in U.S. history.” It is no coincidence that the Governor announced his platform in the beleaguered Luzerne County.

So what will stop change this time around?

All of these changes threaten the status quo. The problem is, they also require action from the Legislature, whose members like their quo to remain static. But this is a time when public push-back could make a big difference. Outraged citizens should call their state lawmakers’ office, and tell them that unless they want a repeat of the blood that followed the pay-raise scandal, they ought to pay attention.

In other words, if we the public remain apathetic, we can expect business as usual. But if we raise our voices and let our leaders in Harrisburg hear that we will accept nothing but systemic change for meaningful reform, perhaps this time will be different.

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Nov 18 2009

Breaking: Rendell announces support of Merit Selection at press conference

Reports are coming in from the press conference held by Governor Ed Rendell. From the Harrisburg Patriot-News:

The governor, speaking on the heels of last week’s fresh wave of corruption charges lodged against former legislative leaders, bemoaned the fact a “broken system” has undermined some of his policy goals and caused other accomplishments to be largely overlooked.

To change things going forward, Rendell pledged new efforts to get legislation passed putting strict new rules on campaign financing, boosting citizen involvement in the redrawing of legislative and Congressional districts, and moving to merit selection of state judges.

From the Philadelphia Inquirer/AP:

Rendell renewed his pitch Wednesday for overhauling the state’s campaign-finance laws, the selection of appellate judges and the process by which state legislative districts are redrawn every 10 years.

WNEP-TV reported earlier on Rendell’s announcement, and you can read a short article and watch a video interview here.

You can see our earlier coverage of the Governor’s tour of the Northeast here.

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Nov 18 2009

Governor Rendell Calls for Merit Selection of Judges

Pennsylvania Governor Ed Rendell began a 3-month tour of the state in which he is calling for sweeping changes, intended to overhaul the notoriously broken political process in the state.  Appropriately, the Governor began his education campaign in Luzerne County, where judicial corruption of an unprecedented scale has damaged the public’s confidence in government at all levels, but particularly in the judiciary.

One of the three core-changes the Governor is targeting to purge corruption from state politics is to switch to merit selection of appellate court judges. Speaking to various audiences, including the Wilkes-Barre Times Leader editorial board, the Scranton Chamber of Commerce, and students at Wilkes University, the Governor highlighted two of the serious flaws with our current system of judicial selection: confusion in the voting booth, and money. The Times-Leader reported:

‘People don’t have a clue who they are voting for,’ Rendell said. ‘In an exit poll conducted five years ago, voters were asked five minutes after they voted to name any of the judicial candidates they voted for, and 50 percent couldn’t remember one.'”

Rendell also criticized political campaign donations to judges. ‘Who gives money to judicial candidates? It’s lawyers, for the most part,’ he said.”

The antidote the Governor proposed is to put qualified judges on the bench through a system of merit selection, where they will be untainted by the corrupting influence of money that Luzernites are, unfortunately, all too familiar with.

This message was music to the ears of Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts (PMC), an organization which has long been calling for Pennsylvania to adopt merit selection for the appellate courts. As PMC’s Lynn Marks explained:

‘Merit selection focuses on getting the most qualified candidates on the bench, offers an opportunity for qualified men and women of all backgrounds from all over Pennsylvania to serve and gets judges out of the fundraising business.'”

The other changes proposed in the Governor’s plan are to implement campaign-finance reform for elected politicians to limit the influence of lobbyists on the state’s lawmakers, and to prevent incumbent legislators from maintaining their power through absurd reapportionment of voting districts.

You will recall that in the just-passed race for a vacant seat on the state’s Supreme Court, vast sums of money were spent on negative advertising. According to many commentators, the race was particularly important to the political parties this year because of the reapportionment issue. In a state like ours, where judges hang party labels after their names (we are one of 6 states that elect judges at all levels in partisan elections), the Supreme Court’s role in deciding contested reapportionment questions becomes a political question and Supreme Court elections become tempting targets for the influence of big money.

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We are delighted that Governor Rendell is bringing the problems with electing judges front and center, and think there is no better place to launch this message than a county that has felt first-hand what hell can be wrought by judges tainted by the influence of money.

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Nov 17 2009

"We Need Merit Selection"

In a letter to the Philadelphia Inquirer, Charlotte Glauser argues that “Pennsylvanian’s judicial system is broken.”  According to Glauser:

As long as we continue the partisan election of judges, we deserve the poor quality of our judiciary. The time is long past to get rid of this system. Both parties are guilty of prolonging this travesty.

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Glauser’s solution: “We need merit selection of judges, especially at the state appeals level.” We certainly agree with that.

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Nov 16 2009

Some Worrisome News from Wisconsin

The Appeals Court panel considering the charges of judicial misconduct filed against Wisconsin Supreme Court Justice Michael Gableman for a misleading election ad has recommended that the charges against him be dismissed.  The question will now go to Justice Gableman’s colleagues on the state Supreme Court for final resolution.  Gavel Grab has a good summary of the case and events leading up to it, and you can read the panel’s decision here.  What worries us is the possible further erosion of the differences between judicial elections and other elections and what it might mean for Pennsylvania.

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.

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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.

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Nov 13 2009

Superior Court Vote Recount is On

Published by under Judges,News

Secretary of the Commonwealth Pedro Cortes announced today that the first ever statewide vote recount will be held to determine the winners for Superior Court. According to a press release available on Capitol Wire:

Act 97 of 2004 provides that any statewide race or ballot question where the margin of victory was less than one-half of 1 percent of the total number of votes cast for that office or ballot question would trigger a recount in all 67 counties. The act also allows affected candidates to submit a written request to opt out of a recount.

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This affects three candidates — Democrats Robert Coleville and Kevin McCarthy and Republican Templeton Smith, Jr., all of whom are trailing Democrat Anne Lazarus within the margin of voters that triggers the recount.  Coleville and McCarthy voluntarily opted out of the recount, but Smith did not do so, even after being granted an extension of time in which to consider whether to opt out.

The recount will begin November 18 and must be completed by November 25, with results to be submitted by November 30. Secretary Cortes estimates that the recount may cost up to $1.3 million.

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Nov 13 2009

Voter education is not enough stop the impact of money on elected judges

The Harrisburg Patriot-Times, which recently ran our opinion piece in support of merit selection, published a letter yesterday in which the author questioned whether merit selection of judges is any better than electing them. While we thank the author for mentioning the work we do to educate voters, we feel obliged to make clear that there is a big difference between the two methods of judicial selection.

The author reasons that because, from his experience, retention elections produce very low voter turnout whether the judge was initially elected or appointed, the public must be equally satisfied with judges in both systems, because:

In Pennsylvania and in Colorado, where I had once resided, retention elections have notoriously poor turnout. Judges routinely win retention on voter turnout of only 17 to 25 percent of registered voters. The conclusion I draw from this is that electing judges for their first term is no better or worse than merit-selection.”

We must respectfully disagree with this broad conclusion. The problem with electing judges is not merely the risk of getting less qualified candidates. The biggest problem with electing judges is that even if an election were to produce the exact same judges as would merit selection, elections beget campaigns, campaigns beget expenses, and expenses beget donations.  Once money is injected into the mix, there is a perception that those who support the candidate will have more influence before the court than will others.

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Our recent Supreme Court race is a telling example of this. Both candidates, Joan Orie Melvin and Jack Panella, were rated as highly recommended by the PA Bar Association. According to experts and editorial boards, either candidate could have served competently, and either could have been chosen through a merit selection process. And under either system, the winner could be removed from the court in a retention election if he or she were to fail to live up to the standards of the electorate.

So far so good. But in Pennsylvania, instead of vetting the candidates before a non-partisan group, the candidates were forced to raise gobs of money from the very groups likely to appear before them. In fact, the candidates accused each other of being influenced by the money each had received, as we pointed out in our piece in the Patriot-News.

Can the public help but question the impartiality of a court under these conditions? Can we really have faith that politics will play no part in challenges to the upcoming reapportionment of state legislative districts that go before the court when the political parties spend so much money getting candidates elected?

The influence of money, real or perceived, is something that even the most ardent voter-education campaigns can’t overcome. While we strongly believe in voter education, and are often frustrated at the dearth of media coverage of judicial elections, only merit selection can truly take money out of the mix.

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Nov 11 2009

Runoff election for 4th Superior Court seat? One candidate will decide.

Published by under Judges,News

The Associated Press reported that a runoff election for the 4th seat on the state Superior Court could begin this coming Monday, unless one of the three trailing candidates, Temp Smith, waives his right to the recount by tomorrow.

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State law provides that an automatic recount is triggered if any candidate trails the winner by less than one-half of 1 percent, according to the Pittsburgh Post-Gazette. All three trailing candidates would have to waive their right to a recount to stop the automatic process. To date, two of the three (Allegheny County Judge Robert J. Colville (D) and Allegheny County Assistant District Attorney Kevin F. McCarthy (D)) have sent in letters saying that they will waive their rights if all the others do as well.  Mt. Lebanon lawyer Temp Smith (R) is the only candidate who has not yet waived. If the elections results stand, Judge Anne Lazarus (D) will take the 4th seat, leading 5th place contender Judge Colville by a mere 2,006 votes.

Judge Colville explained his reasoning for deciding to waive his right in his letter, cited by the Post-Gazette; he does not believe there was any fraud or error, and a recount is therefore unlikely to change the results. And,

‘More importantly, I am advised that the cost of the recount is estimated at approximately $1.3 million, which cost would be borne by Pennsylvania taxpayers,’ he wrote. ‘In these troubled economic times, it would be unacceptable for me to elevate my personal professional aspirations above legitimate considerations of prudent government fiscal management.'”

We’ll keep you posted on developments.

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