judgesonmerit.org

In Allegheny County this week, a grand jury returned a presentment against Senator Jane Orie and her sister Janine Orie, a member of Justice Joan Orie Melvin’s staff, for violations of laws regarding political activity by state employees on taxpayer-funded time.

At issue is an allegedly almost decade-long use of Senator Orie’s legislative staff for political work related to the Senator’s own political campaigns as well as those of her sister, Justice Orie Melvin.  Particular focus has been paid to the alleged use of the legislative staffers  for Justice Orie Melvin’s 2009 successful campaign for the Supreme Court.

Senator Orie and Janine Orie were arraigned on Wednesday of this week.  Now the Pittsburgh Tribune-Review is reporting that a second grand jury is being convened to continue the investigation.  Jack Orie, brother and lawyer to Jane and Janine Orie, believes this new grand jury may be targeting sister Justice Orie Melvin.

There are allegations that the entire investigation is politically motivated.  The District Attorney pursuing the investigation, Stephen A. Zappala, Jr., is the son of former Chief Justice Stephen Zappala.  The Ories contend that  Zappala is targeting Senator Orie because of her opposition to legalized gaming, an industry to which Zappala’s father and sister are tied.

The investigation brings a cloud over two branches of government.   And the allegations  about the judicial campaigns highlight the dangers in using an inherently political process — elections — to select officials who are supposed to be different from those who serve in the political branches.  We don’t want our judges or judicial candidates put in the position of having to make tough calls about the ethical rules governing their campaign conduct and that of their employees.

Like Pennsylvania, North Carolina continues to engage in judicial elections as a means to select its state judges. Yesterday, North Carolina blogger Adam Linker denounced judicial elections as “scary” pursuits that are likely to compromise judicial independence on the bench.

Linker has experience working with the campaigns of two North Carolina appeals court races. He states that candidates are heavily pressured by outside interests and political parties, and forced to mold their candidacies to the positions of these groups in order to gain financial and public support.

Unlike Pennsylvania, North Carolina’s Supreme Court election is non-partisan; candidates are not officially labeled by political affiliation. But, unsurprisingly, political parties find a way to make themselves indispensable.

Linker offers this anecdote:

Howard Manning was likely not elected in 2004, for example, because he asked that the Republican Party not endorse him…Justice Paul Newby had no such reservations, and his name was sent out to thousands of Republicans across the state.

Publicly identifying with one political party or group creates the appearance that the judicial candidate favors one interest over another. This impression is antithetical to our fundamental understanding of what judges should be—neutral arbitrators who consider both sides of a dispute without imposing predisposed biases. Judges are not politicians and should not be treated as such.

In tandem, Pennsylvania and North Carolina show that there is no way to take politics out of judicial elections. The obvious solution is to take judicial elections out of our states.

Taking the high road rarely works in judicial elections. But the high road is the one we want our judges traveling.

Capitol Ideas’ blogger John Micek asks today, “Why can’t Pennsylvania change the way it picks judges?” Micek remarks that our current system may foster corruption.

…There’s a whole ton of cash finding its way into judicial races right now. And it’s likely there’ll be even more money in those races after the Citizens United decision earlier this year cleared the path for even bigger fund-raising.

According to USA Today, the nonpartisan group, Justice at Stake, said candidates for high courts raised $206.4 million for campaigns from 2000 through 2009, more than double the previous decade. Outside interests spent an additional $39.3 million on campaign ads in judicial elections over the past 10 years.

Many judicial reformers (Micek links to PMC) have long advocated for a switch to a merit selection system in which a citizens nominating commission would submit names of potential judicial candidates to the governor for appointment. The appointee would then need Senate approval to reach the bench and would be subject to periodic retention elections. Micek notes that five out of the six gubernatorial candidates are in favor of such a process for Pennsylvania’s appellate level judges.

An editorial in the Harrisburg Patriot-News calls for getting money out of the judicial election system and moving to Merit Selection for the appellate courts.  Quoting the recent American Judicature Society study finding that sixty percent of recent civil cases decided by the state Supreme Court involved a lawyer, law firm or party who had contributed to the election of at least one of the justices, the editorial exclaims, “It leaves a troubling fog over the court.”

The editorial urges that it is time to change the system:

People question whether our court system is fair. Merit selection would bolster a sense of trust.

Noting that the current Governor and five of the six gubernatorial candidates favor Merit Selection, the editorial calls for action:

Supporters need to pressure legislative leaders to allow this issue to come up for a vote in the House and Senate. For too many years the idea has been allowed to linger.

Legislation is pending in both houses that would begin the process of amending the constitution — a process that would culminate in a public referendum on whether to change the way we select appellate court judges.  We agree that the time to act is now.

The front page of USA Today reported Wednesday on the growing number of states that have re-written their rules in an attempt to curb the influence of special interests on judicial selection. In the states that still elect some or all their judges, judicial candidates have raised a whopping $206.4 million in the past 10 years. Outside interests contributed an additional $39.3 million on TV ads.

“It makes it look like justice is for sale,” said Ciara Torres-Spelliscy of The Brennan Center for Justice, which has pushed for changes in judicial elections.

While some states are experimenting with stricter recusal rules to restrict the influence (and appearance of influence) of money on the courts, other states are considering the bolder—and wiser—step of abolishing judicial elections entirely. Minnesota and Nevada may amend their state constitutions to effectuate this change, moving to appointive or merit-based systems of selection. Merit selection legislation is pending here in Pennsylvania.

Reform is in the air in part due to two recent U.S. Supreme Court decisions:

In the first, the high court in 2009 ruled a justice on the West Virginia Supreme Court should have stepped aside in a $50 million case against a coal company whose CEO had spent $3 million to help get the judge elected.

In January, the U.S. Supreme Court allowed unlimited independent spending by corporations and unions in elections. That ruling “has given a lot of extra energy to reform efforts,” said Bert Brandenburg, executive director of Justice at Stake.

Last night, the four Democrats (Allegheny County Executive Dan Onorato, Auditor General Jack Wagner, Sen. Anthony Williams, D-Philadelphia, and Montgomery County Commissioner Joe Hoeffel and two Republicans (Attorney General Tom Corbett and state Rep. Sam Rohrer) running for Governor met at Harrisburg Area Community College for the The Government Reform Debate” sponsored by the League of Women Voters of Pennsylvania, The Committee of 70, and Common Cause/PA.  Five of the six candidates expressed support for implementing a Merit Selection system for the appellate courts.

The Philadelphia Daily News called this portion of the debate “the most interesting issue discussion.”  The article noted that “there was widespread support for changing to merit selection, at least for the appellate levels.”

Capitol Wire reports (subscription required):

All four [Democrats] supported changing to a merit selection system for statewide appellate judges. Onorato said he favored the proposals of Pennsylvanians for Modern Courts, which he said would least politicize the process.

Public radio is reporting that Republican candidate Corbett also supports Merit Selection.  Only Republican Roher spoke in favor of the electoral system.  And the Daily News notes that:

State Sen. Anthony Williams of Philadelphia. . . [argued] that all judges should be appointed. “I come from a community that fought and died for the right to vote,” Democrat Williams said, but noted that he believed that merit appointments would lead to greater diversity on the court, especially because of dismal voter turnout in local elections.

PMC is heartened that Merit Selection is a topic the gubernatorial candidates are talking about, and we are hopeful that we will continue to have a champion of judicial selection reform in the Governor’s mansion.