Archive for December, 2009

Dec 30 2009

More Praise for Merit Selection

Retired federal judge Lee Sarokin praises Merit Selection in his latest contribution to the Huffington Post. He first notes the big problem of money in judicial elections:
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Can you imagine a lawyer or litigant walking up to the bench in the middle of a trial and handing the judge a check as a campaign contribution?! Is it any less unseemly if the check was delivered a week or a month before? This is the by-product of judicial elections. The campaigns themselves have become political, demeaning and adversarial. As in any election, there are those who contribute merely to advance the candidacy of someone in whom they believe, but for many there is an expectation or a perception of a quid pro quo. How else does one explain contributions to both of two rival candidates?

He writes that while not perfect, Merit Selection systems using nominating commissions have a track record of putting well-qualified judges on the bench. He believes Merit Selection works better than the money-influenced electoral system, especially because of the lack of relevant information available to the voters.

Sarokin also deflates the argument that elections ensure judges are accountable to the people. He argues that judges are not supposed to be responsive or accountable to the public will, but rather to the laws and the constitution.  Elections can undermine this principle:

Judges should not be treated like American Idol contestants. One of the principal roles of the judiciary is to protect minorities against the tyranny of the majority. Election of judges reverses that noble goal and demeans the judiciary. The influence of money should have no place in our judicial system.

Well put.

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Dec 28 2009

Times-Tribune: Change to Merit Selection

An editorial in the Times-Tribune of Scranton quotes PMC’s analysis of the cost of the 2009 Pennsylvania Supreme Court election, noting:

Pennsylvania once again leads the nation, as it did in the 2007-2008 election cycle, in the cost of statewide judicial elections. But there is a twist this time, in that the cost is in much more than money alone.

The editorial goes on to detail the heavy spending by the state political parties and other special interests, and notes that the political parties paid special attention this year because of the Supreme Court’s likely role in the upcoming dispute over legislative redistricting.

Then, the editorial recounts new allegations about improper fundraising activities by State Senator Jane Orie on behalf of her sister Joan Orie Melvin’s campaign for Supreme Court.  The editorial includes the Senator’s accusations that the probe is politically motivated by the District Attorney (son of a former Supreme Court justice who now works for the gaming industry) in retaliation for the Senator’s anti-gambling stance.  The editorial astutely observes:
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All of that is the sort of inside political baseball for which Pennsylvania is infamous. But the point is that Pennsylvanians shouldn’t have to worry about those back stories if they have business before an appellate court.

This, of course, is the key point.  When you go to court to have your disputes resolved, you want them resolved according to the law and the facts.  Political calculations, campaign donations, personal vendettas — none of this has any role in the way judges are supposed to decide cases. The problem is, electing appellate court judges the same way we elect political office holders makes it hard to believe that justice and the law prevail in our courtrooms.

The editorial closes with this call to action, which we hope will soon be heeded:

Bills are pending in both houses to begin the process of amending the state constitution to establish merit appointment of appellate judges. Lawmakers should initiate the change.

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Dec 23 2009

PA Judges Come With High Price Tags

Dave Davies of the Philadelphia Daily News wrote yesterday in response to Pennsylvanians for Modern Courts’ press release on the huge amount of money spent by the candidates and third-parties on this year’s PA Supreme Court race. Data from the current year is still incomplete, yet PMC reports that at least $4.5 million has already been spent.

In recent years, Pennsylvania has been leading the nation in money spent on judicial elections. These extreme figures highlight the need to switch to a merit-based selection process. PMC’s Lynn Marks told Davies of the inherent dangers of judicial election fundraising:

These candidates have to raise enormous amounts of money, and it comes from groups that are often in state court – lawyers, businesses, unions and political committees, and also the state political parties. If you think of yourself in court, you don’t want to be sitting there wondering whether your opponent, or your opponent’s attorney, made a large contribution to the judge.”

A procedural switch from elections to merit selection requires a change in the state constitution. There is current legislation pending in both the House and Senate to achieve such an amendment.

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Hopefully the data from the 2009 Supreme Court race will make both voters and their representatives take note and reconsider our current system of choosing judges. Justice is not a commodity. No one should ever worry that it might be for sale.

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Dec 22 2009

New Records May Be Set by 2009 PA Supreme Court Election

Pennsylvanians for Modern Courts today announced that the 2009 Supreme Court election between Republican Joan Orie Melvin (the winning candidate) and Democrat Jack Panella is likely to set new fundraising and spending records.  The final numbers are not yet in, as candidates can continue to raise funds until the end of the year.  But we can now report that the Supreme Court election cost at least $4.5 million, and PMC believes the total is significantly higher.

PMC’s press release documents fundraising and spending by the candidates’ campaigns, but notes that although they together raised and spent over $3.6 million, that is not the whole money story.  Instead, we found it necessary to research who else was spending money on the election.

The answer was political bodies, incuding the state Republican Party, the state Democratic Party, and the Republican Senate Committee.  In fact, the state Republican Party directly funded Judge Orie Melvin’s television campaign, to the tune of at least $975,849.  This means the state Party outspent the candidate’s own campaign.
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Reports also reveal that from January 1, 2009 until November 23, 2009, the state Republican Party spent at least four million more and the state Democratic Party spent close to $2 million. Although the parties were not required to identify the candidates on whom they spent money, it seems reasonable to assume that a good portion of that six million dollars was directed to the Supreme Court election.

Pennsylvania had the nation’s most expensive Supreme Court elections in the 2007-08 election cycle, and the available data is leading elections experts to predict that Pennsylvania will again earn that title for 2009-10.   As PMC’s Lynn Marks explained, “Pennsylvanians should not take pride in leading the nation in spending for judicial elections.  Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”

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Dec 21 2009

Merck Stays Out of Judicial Campaign Contribution Game

Published by under News

Some friends in the corporate world share our concerns about the role of money in judicial elections. Merck VP, Charles R. Grezlak, told the Center for Political Accountability, a nonprofit group working towards greater transparency in political spending, that the pharmaceutical company would no longer make donations to state supreme court candidates.

Merck’s decision came partly in response to the recent U.S. Supreme Court ruling in Caperton v. Massey. Writing for the majority, Justice Kennedy said:

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

In spite of the Court’s strong warning that campaign contributions may jeopardize a litigant’s right to a fair trial, judicial fundraising is a necessary evil in states that continue to elect their judges through partisan elections.

Merck’s decision to remove itself from this politicized arena is a welcomed step in the direction of greater judicial accountability. Merck’s leadership on this issue may encourage other major companies to follow suit by extracting themselves from the money game as well. Businesses, as well as all other potential litigants, should not feel pressured to compete for justice with their checkbooks.

In Pennsylvania, campaign spending on judicial elections has skyrocketed. Notable (and notorious) was this year’s Supreme Court election in which the two candidates raised well over three million dollars combined. Pennsylvanians need to take a hard look at where all this money is coming from and how it is impacting the fairness of our courts.

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Dec 21 2009

Merit Selection Ends the Money Game

In a letter to the Philadelphia Inquirer, PMC’s Shira Goodman argues that Merit Selection ends the money game that is so much a part of judicial elections.  Remember, much of the money that funds appellate court election campaigns comes from lawyers, law firms, businesses, unions and others with cases before the appellate courts.  In addition, the political parties often — like in this year’s Supreme Court race — spend big money to elect their favored candidates.

Merit selection eliminates all this spending and, most importantly, stops the flow of money from lawyers to the campaigns of judges likely to rule on their cases.

The letter also focused on the role of the public in a Merit Selection process, including: participation on the nominating commission; providing information about applicants for appellate court vacancies to the nominating commission, the Governor and the Senate during the application/evaluation, nomination and confirmation processes; and voting in retention elections to determine if judges should remain on the bench.

Critically, only the people of Pennsylvania can change the way we select appellate court judges:

Pennsylvania can change the way we select appellate judges, but only if the people vote to amend the constitution. It is time to let Pennsylvanians make this decision.

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Dec 16 2009

O’Connor Judicial Selection Initiative Pushes for Merit

Published by under Merit Selection,News

CNN reported yesterday that retired U.S. Supreme Court Justice Sandra Day O’Connor, a long-time advocate of merit-selection, has lent her name and her support to a project that will work to change the way state judges reach the bench. While many states already have some form of merit selection in place, others, including Pennsylvania, continue to elect their judges in contested partisan elections.

The O’Connor Judicial Selection Initiative, created by the Denver-based Institute for the Advancement of the American Legal System, hopes to change that by assisting state-level reform efforts. O’Connor expressed her concern that judicial elections lead to both a loss of judicial independence and a loss of public confidence in the court system:

Studies show that roughly 70 percent of the public believe judges are influenced by campaign contributions, and more than one quarter of judges agree.

This is alarming because the legitimacy of the judiciary rests entirely on its promise to be fair and impartial. A judge’s sole constituency should be the law. If the public loses faith in that impartiality, then there is no reason to prefer the judge’s interpretation of the law to the opinions of the real politicians representing the electorate.

Unlike other elected officials, a judge’s role is not to be responsive to the public. Judges have a duty to be impartial and to adhere to the rule of law, even if than means making unpopular decisions.

Judges themselves admit that impartiality may be compromised by the abundance of “cash in the courtroom”—the result of campaign contributions made by third parties to the judge’s campaign.

Ohio Supreme Court Chief Justice Thomas Moyer, who supports changing his state’s voter-based system, has also said that money needs to be taken out of the equation in order to maintain public confidence. This would mean a switch to merit selection. Hopefully, with insight and aid from the likes of O’Connor and Moyer, states will be encouraged to re-evaluate and reform the ways in which their judges are selected.

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Dec 15 2009

Judges “Unfriending” Lawyers in Florida

Published by under Judges,News

Judges in Florida should take advice from the country music song and “find out who your friends are.” According to the Law Blog of the Wall Street Journal, Sunshine State jurists have been advised by the Florida Judicial Ethics Advisory Committee (FJEAC) to avoid becoming Facebook “friends” with lawyers who may appear before them in court.

Facebook is a social networking website that allows its 350 million + users to “friend” other users. By creating a network of Facebook friends, users are then able to share personal information, stories, articles, pictures, videos, and a host of applications with people on their network. While the website began as a social tool for college students, it has since expanded to become an all-purpose utility for businesses, charities, organizations, and individuals to share their products, causes, and messages across the world wide web (Pennsylvanians for Modern Courts has a Facebook page, located at  Users can become “fans” of the myriad organizations with pages on the website and thereby stay informed through updates.

Political candidates, including judges in states that still elect judges in popular elections, often create Facebook pages as a means of developing support and distributing information to those interested. And though many working folks prefer to use websites devoted to the career-minded (such as LinkedIn) for their online professional networking, Facebook is becoming an increasingly popular destination for such vocational contact-exchanges.

According to the Law Blog, “while [Facebook] ‘friending’ connotes a level of intimacy greater than, say, an exchange of business cards, it falls well short of establishing or confirming true friendship.” The FJEAC, however, considers the social component of Facebook to great a threat to the independence of judges, and issued this advisory opinion. The opinion poses a series of questions and brief answers, followed by this explanation:

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

The St. Petersburg Times noted that the ethics ruling requires that judges not only refrain from friending lawyers that may appear before them, but actually “unfriend” any whom they have already friended. The paper points out that “Judges are not bound by the ruling but tend to follow the committee’s advice.” That didn’t stop one Circuit Judge, Pat Siracusa, from dropping 82 friends. Another, Judge Rex Barbas, had a more practical question: “How do you unfriend somebody?” he asked. “And do I get in trouble if I can’t figure it out?

Whether or not this is a trend that other states will follow has yet to be seen. In Pennsylvania, there is currently no such requirement. In fact, there is not even a requirement that a judge recuse his or herself from a case involving a party or attorney who has contributed money to the judge’s election campaign. And, as the St. Petersburg Times article indicates, this leads to some less-than -kosher relationships in the courtroom:

In close-knit courthouse circles, the lines between attorneys and judges are hardly black and white. Lawyers contribute to judicial campaigns. Judges hear cases argued by lawyers they once practiced alongside or have known for years. Judges disclose the connections in open court and sometimes remove themselves from a case if they are too close to the players.

“Sometimes” remove themselves, but not always. The problem of money in judicial selection seems to us a bigger problem than the “friending” issue, but the underlying concern is the same: how do we maintain public confidence that judges are impartial and unbiased? We believe that requires more than rules about social networking — it requires judicial selection reform.

To join a discussion about this topic, become a fan of our Facebook page and leave your thoughts!

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Dec 14 2009

Uniontown Paper Backs Merit Selection Bill

Published by under Merit Selection,Opinion

After admitting initial skepticism, the Herald Standard has come out in support of House Bill 1619, which would put an end to judicial elections at the appellate level by instituting a system of Merit Selection.

On Friday the Uniontown paper had this to say about this to say about Pennsylvanian’s present politicized system of electing judges:

Once into politics, it’s not hard to imagine that in some way these judges are invariably influenced by the political interests that got them there.

With the current system there’s nothing ensuring the judges that get elected are competent or qualified since the only qualification is the ability to be good at politics.”

Running in contested partisan elections, judicial candidates are forced to campaign and fundraise in order to get their names known to the public. Yet aside from a name, little relevant information is readily available for voters to make an informed decision. Much of the funding supporting judicial candidates comes from lawyers, law firms, businesses, unions, political parties, special interest groups, and third parties that could potentially come before the elected judges as litigants. While judges may claim impartiality, the public perceives such a practice as “justice for sale.”

The proposed legislation would institute a nominating commission that would submit the names of the most qualified candidates to the governor. After nomination by the governor and confirmation by the Senate, a judge would serve an initial term of four years. Then the public would decide in a retention election whether the judge should remain on the bench.

The Standard notes that while there may be some very competent and fair judges on the bench, elections do not guarantee us this result.

Isn’t it time we improve such a process?”

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Dec 11 2009

The House Judiciary Committee’s Merit Selection Hearing

Published by under Merit Selection News

We have now created a page devoted to Monday’s Merit Selection hearing before the Courts Subcommittee of the House Judiciary Committee.  On this page, you will find information about the legislation, those who testified at the hearing and links to the testimony submitted by other interested organizations.

The hearing was the first step in the House’s consideration of the legislation. We hope that the process will continue so that Pennsylvanians can weigh in on whether to change the way we select appellate court judges.

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