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Instructions:

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Thanks for your support. Remember, voting ends today!

Illinois joins Pennsylvania in that small group of states that elect all judges in partisan elections. It’s no suprise, then, that some judges in Illinois are engaging in an argument similar to one the Pennsylvania Supreme Court candidates had during the recent election. They are arguing about the role of money in elections and the extent to which it affects judicial independence.

The Daily Herald, a suburban Chicago newspaper, reports that three judicial candidates running in Kane County are refusing or limiting campaign contributions from attorneys.  John Dalton, one of the candidates refusing all attorney contributions explained:

“The citizens of Kane County have the right to a fair trial and an impartial judge. . .. Accepting contributions from attorneys would bring my independence and integrity into question.”

Two other candidates who declined to adopt the same guidelines also claimed to be guided by concerns about ethics and judicial independence:

“Isn’t Mr. Dalton really saying he can’t be impartial here?” [Leonard Wojtecki] said. “I know of no lawyer or judge who is going to throw away their career for a campaign contribution.”

Added [D.J.] Tegeler, a Geneva attorney: “My ethics are not to be bought. If I ever feel down the road I need to recuse myself, I’ll do it.”

But candidate Thomas Patrick Rice’s comments hit the nail on the head:

Rice, a Batavia attorney, called the debate “ludicrous” and a “ploy” for publicity. He said judicial candidates might as well refuse all donations, according to his opponents’ philosophy, because anyone could wind up in a courtroom at any time.

“I may be the only one who has the guts to tell you this, but you have to take the money,” he said. “Until we have (nonpartisan) merit selection, you have to have a campaign that costs money.”

That’s exactly right — when you have judicial elections, there’s no way to get money out of the mix.  The answer, then, is to get money out of the judicial selection system. The way to do that is Merit Selection.

Bills:

• House Bill 1619 and House Bill 1621

News and Press:

• Philadelphia Inquirer: House urged to end election of Pa. judges, Amy Worden. Lynn Marks quoted.
• WHYY: Pa. having doubts on wisdom of electing judges, Scott Detrow. Robert Heim, PMC Chairman, quoted.
• PR Newswire: Governor Rendell Endorses Judicial Merit Selection Reform Bill
• Capitolwire (Subscription Required): House committee weighs benefits of appointing appellate judges, Laura Olson. Lynn Marks quoted.

Blogs and Opinions:

• Gavel Grab: Merit Selection Urged at Pa. Hearing; JAS Submits Pa. Testimony on Merit Selection
• It’s Our Money Blog/ Philly.com: Rendell pushes for merit selection of judges

And of course, read our take on the hearing here.

We will post more comprehensive coverage of the hearing, including transcripts of testimonies, within the next few days.

On Monday, the Courts Subcommittee of the House Judiciary Committee held a hearing on the pending Merit Selection legislation.  Representative Josh Shapiro (D, Montgomery) chaired the hearing in Subcommittee Chair Don Walko’s (D, Allegheny) absence. Also attending were Minority Subcommittee Chair Tom Creighton (R, Lancaster), bill sponsor Matt Smith (D, Allegheny), Mike Vereb (R, Montgomery), Joseph Petrarca (D, Armstrong), Kathy Manderino (D, Philadelphia and Montgomery), Kate Harper (R, Montgomery), Glen Grell (R, Cumberland) and Deberah Kula (D, Fayette and Westmoreland).

The hearing was very informative.  Nearly all who testified — both those who supported the legislation and those who opposed it in some way — agreed that there are problems with the current electoral system, notably the role of money in the process.  This consensus is significant and reflects the public’s belief in the corrupting influence of money in the process.

Testifying on behalf of the legislation were PMC and PMCAction’s Bob Heim, Lynn Marks and Shira Goodman; Dave Taylor of the Pennsylvania Manufacturer’s Association; and Charlotte Glauser of the League of Women Voters of PA.  J. Whyatt Mondesire of the NAACP was scheduled to present testimony in support of Merit Selection but was unable to attend.

In the next few days, we will upload copies of the testimony presented at the hearing, but we offer a few highlights.  Bob Heim, Chair of PMC, focused on the need for reform and the importance of getting judges out of the fundraising business. He highlighted the public’s growing concern that money can influence judicial decisionmaking and called on the legislature to allow Pennsylvanians to decide whether to change the way we select appellate court judges.

Charlotte Glauser of the League of Women Voters of PA explained the League’s long standing support for Merit Selection, urging “Passage of these bills will do much to restore the public image of independence of Pennsylvania’s appellate court system.”

PMA’s Dave Taylor explained that Merit Selection would “improve the professionalism, integrity, and independence of the judicial branch of goverment.” Taylor explained:

By combining elements of elective and appointive systems for nominating our appellate court judges, Pennsylvania can uphold the professionalism of the courts and protect our jurists from the conflicts of interest that inevitably arise from political fundraising and campaigning.

Testifying in opposition were Tom Foley III of the Pennsylvania Association for Justice (formerly the Pennsylvania Association of Trial Lawyers), Professor Michael Dimino of Widener University, and Rick Bloomingdale, Secretary Treasuer of the AFL-CIO.  Professor Dimino actually endorsed a Merit Selection for the Superior and Commonwealth Courts and even for the trial level courts, but argued against Merit Selection for the Supreme Court.

Rick Bloomingdale of the AFL-CIO noted the organization’s current opposition to the legislation, but expressed a willingness to support an amended version of a Merit Selection plan. This is significant, and we are hopeful that as the Committee considers the bill, we can work with our traditional partners and with groups such as the AFL-CIO to design the best system of judicial selection for the Pennsylvania appellate courts.

In a publicly released letter to bill sponsor Matt Smith, Governor Rendell again expressed his strong support for Merit Selection:

I have said on many occasions that our system of electing appellate judges makes no sense. It is no secret that there is great concern in Pennsylvania about the role of money in judicial elections. Current law could allow judicial candidates to accept indirect contributions from lawyers and special interest groups that may eventually have to argue a case before that judicial candidate. It is no wonder that Pennsylvanians have been losing faith in our courts and our judges.

PMC and PMCAction are grateful to the House Judiciary Committee and its Subcommittee on Courts for the opportunity to present public testimony at yesterday’s hearing. We thank the bill sponsors, Representatives Smith and Will Gabig (R, Cumberland), for their leadership as well as all the representatives who attended the hearing.  We look forward to working together to achieve a better way for Pennsylvanians to select appellate court judges.

On Monday December 7, the Courts Subcommittee of the House Judiciary Committee is holding a hearing on the pending Merit Selection legislation.  The hearing will be at 10:00 am in Room G50, Irvis Office, Capitol Building.

Testifying in support of implementing a Merit Selection system for the Pennsylvania appellate courts will be Robert Heim, Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts and PMCAction, J. Whyatt Mondesire of the NAACP, Dave Taylor of the Pennsylvania Manufacturers’ Association and Charlotte Glauser of the League of Women Voters of PA.

The hearing is the first step in the process of moving forward with legislation to amend the constitution.  We hope this process will allow Pennsylvanians to have an important dialogue about whether we should change the way we select appellate court judges.

We know from polls and surveys and from low voter turn-out that there is great concern about the role of money in judicial elections.  We also know that Pennsylvanians have been losing confidence in our courts and judges.  We believe Merit Selection — which focuses on getting the most qualified, fair and impartial judges on the appellate courts and gets judges out of the fundraising business — will be a significant factor in restoring public confidence in our courts.

Sometimes, even good intentions and good ideas don’t actually add up to be all that good.  Take the pledge made by the campaign of Arkansas Appeals Court Judge Karen Baker who is now running for a seat on her state’s Supreme Court.  The ArkansasTimes reports on its blog that Judge Baker “won’t accept campaign contributions from lawyers who practice before her through her campaign to win a state Supreme Court vacancy.”

Let’s take a closer look.  It’s not really clear whose money will be turned away.  Is it lawyers practicing before the judge now, or lawyers practicing before the Supreme Court now?  The campaign itself admits it is “impossible to predict the future,” and that recusal may be warranted if a donor later appears before the judge.  And, as the report points out, the pledge “does not mean Baker won’t accept contributions from other lawyers, including those who might share firms and offices with people who practice before her or lawyers who’ve been before her in the past.”

The blog opines that this is a tactical move by the campaign: trying to convert anticipated low fundraising into a statement of reform.  This may be an unfair characterization; perhaps the judge was motivated by only the best intentions. But that doesn’t change the fact that she may still take contributions that can create potential conflicts.

The blog also notes that a more appealing position would be for a candidate to turn away all donations from lawyers. We believe there’s an even better solution to the issue of campaign fundraising: get judges out of the fundraising business altogether. Stop the flow of money to judicial candidates from lawyers, law firms, businesses, unions and individuals who litigate in the state courts.  Merit Selection is the way to do this.

In the wake of the United States Supreme Court’s decision in Caperton v. Massey, many states decided to review their rules governing recusal.  Michigan  last week formally issued a new recusal rule that includes a provision empowering the entire Supreme Court to review and overrule the refusal of one of the justices to recuse. Our friends at Gavel Grab have a detailed analysis of the continuing bitter debate between the current justices regarding this rule.

What grabs our attention is the particular focus of the dissenting justices on the “rights of elected judges” and those who voted for them.  Here’s part of Justice Maura Corrigan’s commentary dissenting from the rule change:

For the first time in our state’s history, duly elected justices may be deprived by their co-equal peers of their constitutionally protected interested [sic] in hearing cases. Starting today, those contesting traffic tickets will enjoy greater constitutional protections than justices of this Court.

When it comes to the courts and fair trials, we’ve always been most concerned about the litigants having a fair trial.  Certainly, a litigant’s right to have a fair and impartial judge outweighs a judge’s right to hear a particular case.  And, frankly, a litigant’s rights — even in traffic court — should be of more concern to everyone who cares about justice than the judge’s right to preside over a particular case.

Chief Justice Marilyn Jean Kelly made a similar point in her response to the dissenters:

[I]t is a gross perversion of law for Justice Corrigan to allege that, ‘In one administrative order [the recusal rule], the majority takes away the right of every citizen of Michigan to have his or her vote count.’ The accurate statement is, with this rule, the Court permits a justice’s recusal where that justice is unable to render an unbiased decision and unable or unwilling to acknowledge that fact. The justice system and this Court can only be stronger for it.

Winning an election does not give a judge the right to preside over any or every case that comes before the Court.  Nor does voting for a particular judge give the public the right to have that judge preside over any or every case that comes before the Court.  A judge should only hear a case if it is certain he or she can be fair and impartial.

The results at the ballot box should not dictate when a judge is free from bias in a particular case.  In face, as we have argued repeatedly, it is precisely because judges are elected that strong recusal rules are necessary. The fact that some — including some state Supreme Court justices in Michigan — seem to believe that election returns are more important than ensuring a fair and impartial court — should be of great concern to us all.