judgesonmerit.org

Capitolwire today named merit selection for judges a “hot reform issue,” listing reasons why supporters are eager to rid Pennsylvania of judicial elections.

[T]he elections are expensive, it’s unseemly to make judges rely on campaign contributions from lawyers and big groups whose cases will likely come before them, the judges can’t really tell voters what they will do if elected, etc.

But the article goes further in stating that these arguments should apply to elections for the office of lieutenant governor as well.  The race for lieutenant governor, like those for the appellate courts, often

hinges on arbitrary fact

ors such as geography or ballot position. In many instances voters, lacking sufficient and relevant information about the candidates, are left with cable television ads from which to base their decisions.

The role of judge and that of lieutenant governor are exceedingly different and thus elections for the two positions cannot truly be viewed as analogous. Judges are different from other elected officials in that they are supposed to be impartial and not beholden to any particular interests or constituency groups. Elections are simply an improper way to select the “neutral arbiters” of the Pennsylvania appellate bench. Only a switch to merit selection will remedy the public perception of judges as “politicians in robes.”

It is hard to amend the Pennsylvania constitution.  Doing so requires passing the same piece of legislation twice — once each during successive two year sessions.  That’s only the beginning.  After second passage, the question goes on the ballot, where the people vote in a referendum on whether to approve the amendment.  This takes a long time and a lot of effort and  consideration.  And that’s entirely as it should be — amending the constitution deserves careful scrutiny and attention.

We think it’s time to get this process started so

that the people of Pennsylvania can decide whether to change the way we select appellate court judges.  We’re in the early stages — we’re just working for the first consideration of Merit Selection legislation by the legislature.  But this would start the dialogue in Pennsylvania about a critical issue.

We welcome such a discussion.  We think it’s long overdue.  And we  know  many Pennsylvanians do as well.  So, we hope the legislature will get it started so that Pennsylvanians can ultimately make this important decision for themselves.

After Governor Rendell’s news conference last week calling for merit selection for Pennsylvania’s appellate court  judges, editorials around the state have been echoing the governor’s endorsement of this reform.

The Chambersburg Public Opinion has made its voice heard as well, pointing out that the public can no longer feel confident in the impartiality of our state judiciary.

[T]he idea of a judge as an unbiased arbiter of competing arguments has been undermined in Pennsylvania by recent developments on the state and national stage.

They include a 2009 state Supreme Court election notable for its cost and caustic nature; the Luzerne County “kids-for-cash” scandal; U.S. Supreme Court decisions to allow more money into judicial campaigns; and a bitter and polarized electorate.

It seems we won’t have long to wait before every judicial campaign ends up as mucky as those run by the executives and legislators whom judges are supposed to check and balance.

With high price tags and low ball attack ads, judicial campaigns are already nearly indistinguishable from other political races. Elections are simply not the proper forum for selecting our appellate judges. Until a change is made, the stability of our judicial system remains in jeopardy. It is time to let the people of Pennsylvania decide whether to make the switch to merit selection.

This morning at 9:30 PMC Executive Director Lynn Marks will appear on WITF’s Smart Talk (89.5 and 93.33 FM Harrisburg)  to discuss Merit Selection and the Governor’s call for the legislature to move the legislation.

Passage by the legislature is only the first step in the lengthy constitutional amendment process.  If the legislation passes this session, it must pass again during the 2011-2012 session.  Then, it would go on the ballot for the public to vote in a referendum.  We can only change the way we select appellate judges if the people  of Pennsylvania vote to do so.  We hope the public will get the chance to make that decision.

Yesterday’s call by Governor Rendell for the legislature to pass the pending Merit Selection bills has got Pennsylvania talking.  An editorial in the Philadelphia Daily News shares the Governor’s sense of urgency to pass the legislation and argues: “Imagine if judges didn’t have to rely on the kindness of ward leaders, or the luck of ballot position.”

In addition, the Philadelphia Inquirer has a full report on the news conference and quotes the Governor’s exclamation that there is “no excuse for not moving the legislation this year and putting the question on the ballot by late 2011.” The Inquirer also quoted PMC Executive Director Lynn Marks who explained that Merit Selection is designed to get the most qualified, fair and independent people on the appellate courts.

The Pittsburgh Post-Gazette notes that the Governor is seeking to give a jumpstart to the Merit Selection legislation.  The article quotes local State Senator Jim Ferlo on the need for reform: “The impact of the electoral system on the impartiality of judges puts the fairness of our courts in question, and now requires judicial candidates … to raise millions of dollars to run their campaigns.”

Additional coverage of the Governor’s press conference and the call for action can be found at WHYY 91 FM, the Citizens’ Voice, the Times Leader, the Patriot-News, and Gavel Grab.

Governor Rendell held a news conference today stressing the importance of House and Senate bills that would change the way Pennsylvania chooses its appellate judges from elections to Merit Selection. The constitutional amendment process requires that Pennsylvanians vote on this proposal to make such a change.

The governor has long endorsed this critical reform issue and explained why reform is critical to establishing a judiciary of the most qualified members and maintaining the public’s confidence in that bench.

The governor laid out some of the most compelling reasons for reform:

• The cost of judicial elections is skyrocketing. Much of the money comes from political parties and special interests, creating the appearance of impropriety. Judges should be impartial and not appear aligned with any particular interest.

• A recent study by the American Judicature Society shows that 60% of litigants, lawyers, or law firms that come before the Pennsylvania Supreme Court have donated to the election campaign of at least one seated-Justice.

• Pennsylvania is behind the times; PA is one of only 6 states in the nation that continues to elect all of its state judges in contested partisan elections.

Merit Selection has bipartisan support and an exceptionally broad and growing coalition. Governor Rendell expressed frustration that the bill has not been voted on and urged the legislature to act. The governor noted the efforts of Pennsylvanians for Modern Courts in working for Merit Selection. In turn, PMC and PMCAction applaud the governor’s commitment and support of this cause.

Read our press release regarding the news conference here.

Governor Rendell will hold a news conference at 11 a.m. tomorrow in Harrisburg to discuss merit selection of judges. At PMC we are happy that the governor is addressing such an important issue and pressing for action.

Pennsylvania currently selects all of its state judges in hugely expensive, contested partisan elections. PMC and other reformers have long called for a change to a merit-based system of selection for the appellate bench. Judges would be chosen by the governor from a list of highly-qualified candidates assembled by an independent bipartisan citizens nominating commission. A bill to enact such a change is currently pending in the legislature

Two of Pennsylvania Supreme Court Justice Joan Orie Melvin’s sisters have been indicted on charges that they improperly used legislative resources to further the Justice’s 2009 campaign for the Supreme Court. While the Justice herself has not been charged, the Legal Intelligencer reports that some are calling the indictment part of a “perfect storm” brewing around our state’s highest court.

One well-known activist from Middle Paxton, PA has already filed a complaint with the Judicial Conduct Board against Orie Melvin, and others have suggested that his actions are aligned with the attitudes of the general public.

The court system is still reeling from a year of negative press. From the Luzerne County “kids-for-cash” scandal to a recent report on the high-rate of overlap between donors to the Supreme Court candidates and those who come before the newly-elected justices in court, the charges against the Orie sisters system will only worsen the public perception that the judiciary has been compromised.

Said Duquesne Law professor Bruce Ledewitz,

This is a perfect storm of problems for the court. You could hardly imagine something worse.

Judges are not like other elected officials. Yet when judges are forced to run in elections like other politicians, the lines are blurred.

Lynn Marks, executive director of PMC, explained,

When you have people who are campaigning for judicial office, some of them are actually sitting judges in another court. The public sees them as politicians in robes. When they then take the court, when they’re sitting [on the bench], it’s no wonder that too often people think it’s just an extension of the campaign.

Shira Goodman, deputy director of PMC, added,

We kind of have been getting used to stories about legislative offices and campaigns. We’re not used to hearing that much of judicial campaigns. Most of the fundraising gets done before a judge gets in office, but people do get elevated … If it turns out [Orie Melvin's] campaign or her staff is directly involved in this, it would open up a whole other view into problems with the electoral process. I don’t want to see judges having to be close to the line with their own behavior.

An editorial in today’s Philadelphia Inquirer charges that confidence in our state’s highest court has been lost. Last week state Senator Jane Orie and her sister, Janine Orie, were indicted on charges that they improperly used state resources to aid the campaign of a third sister, Supreme Court Justice Joan Orie Melvin. Janine Orie has worked as a staffer for Justice Orie Melvin for the past ten years. In light of the allegations she has been suspended from her position as chief administrative judicial assistant.

Justice Orie Melvin has not been charged. However, the allegations still have serious implications for the Justice and the Court. Until the allegations are resolved, Justice Orie Melvin will be unable to rule on any case involving the office of Allegheny County District Attorney Stephen A. Zappala Jr., who brought the charges against her sisters.

The editorial points out that it doesn’t have to be this way:

…[T]he Orie clan’s troubles are a reminder that neither the justice, her relatives, nor the state court system would be facing this scandal if Pennsylvanians did not elect their top judges.

In fact, a solution is out there:

A measure in the state legislature would seek voters’ approval to replace partisan elections of appellate judges with merit-based appointment. Most states, including New Jersey, appoint some or all of their judges – a system shown to produce a more diverse bench and to reduce political controversy, which can erode public confidence.

But as of right now, the damage has already been done:

No matter how the court case involving the Orie sisters plays out, Pennsylvanians would have more faith in their judiciary without legal scandals and campaign-donor conflicts arising from judicial elections.

Pennsylvania Chief Justice Ronald Castille, in an interview with the Philadelphia Inquirer about the recent charges filed against State Senator Jane Orie and her sister Janine Orie, who works in the judicial office of Justice Joan Orie Melvin, expressed concern about how the developing story might impact the Court: “‘It’s not good, I can tell you that.’”

The Chief Justice noted that the allegations are related to political campaigns, including Justice Orie Melvin’s recent successful campaign for the Supreme Court, not the Court itself.  However, he also acknowledged that:

[T]he public may not see the fine line between the court and the allegations – especially because the charges come on the heels of the “kids-for-cash” scandal in Luzerne County, where two former judges are accused of sending juvenile defendants to detention centers in return for $2.6 million in kickbacks.

This “fine line” is something we’ve always found problematic — it’s hard to separate the justices and their work on the Court from the political process that got them to the bench.  That’s one reason that the public perceives that campaign contributions may influence judicial decision-making.  And it’s a big reason to treat judges differently from other elected officials — not only once they are in office, but also while they are trying to reach office.  That is, judges are different and should be selected differently.

The Chief Justice noted that Justice Orie Melvin should recuse herself from any case involving the Allegheny County prosecutor’s office because presiding over cases involving those prosecuting one’s family members could create a perception of impropriety.  Jack Orie lawyer (and brother) to Senator Orie and Janine Orie (and brother of Justice Orie Melvin) stated that Justice Orie Melvin would recuse from such cases.

It remains to be seen how the ongoing investigation and prosecution will impact the Court.  As we reported yesterday, the Pittsburgh Times-Tribune reported that a second grand jury is being impaneled to continue the investigation, and Jack Orie expressed the belief that it would be targeting Justice Orie Melvin.