judgesonmerit.org

Alabama Supreme Court Justice Mike Bolin is accusing his opponent, lawyer Tracy Cary, of hypocrisy after he openly criticized the high cost of judicial elections and later inserted massive funds into his campaign, Gavel Grab reported.

A statement on Cary’s website reads:

I will not participate in the outlandish fund-raising of past judicial campaigns. This is only a start but I want to do my part to help restore public confidence in our courts.

Justice Bolin’s campaign manager accused Cary of purchasing $650,000 in ads after the deadline to report campaign contributions.

In a statement, Cary called his original stance on fundraising “naïve” and said:

I needed TV ads and discovered that funding them would not be possible if I continued to accept donations only from friends and family. Judicial campaigns in Alabama are outrageously expensive.

Cary is correct. Judicial campaigns are “outrageously expensive,” and the costs are only continuing to rise. In the 2009 Pennsylvania race for the Supreme Court, candidates spent at least $4.5 million attempting to get elected.

What’s worse is that judicial candidates are forced to raise gobs of cash from the same individuals and special interests that may later appear before them in court. In addition, highly qualified individuals are routinely discouraged from running for judge due to the daunting task of raising enough money.

It is clear that judicial elections do a disservice to both the public and the judicial candidates. It is time to get judges out of the fundraising business.

Gavel Grab reported yesterday that Ohio’s newly elected Chief Justice Eric Brown made personal telephone calls requesting attendance at campaign fundraising event. The state’s code of judicial conduct prohibits “direct solicitation and receipt of campaign contributions.” An advisor to the campaign asserts that the Chief Justice did not violate the rules because he only urged attendance and did not directly ask for donations.

Despite whether or not a technical violation occurred, such conduct by potential judges still undermines the judicial system. Bert Brandenburg of the national watchdog Justice at Stake explains:

No one who goes to court wants to know that their judge is trapped in a money chase, dialing for dollars.

We agree. That’s why we think elections which essentially require judges to become fundraisers are not the way to select appellate judges.

Last Friday the New York Times ran an editorial written by retired U.S. Supreme Court Justice Sandra Day O’Connor, extolling the advantages of merit selection over judicial elections for state judges.  O’Connor writes that while the lifetime appointment feature of the federal system leaves citizens with little redress against an errant judge, and judicial elections make judges too vulnerable to the ever-shifting winds of majority opinion, a merit selection system provides for a delicate balance between the two. The combination of the nonpartisan citizens nominating commission and a later yes/no retention vote for a sitting judge effectively “protects the impartiality of the judiciary without sacrificing accountability.”

O’Connor writes,

State courts resolve the most important legal matters in our lives, including child custody cases, settlement of estates, business-contract disputes, traffic offenses, drunken-driving charges, most criminal offenses and most foreclosures. More than 100 million cases are filed in state courts each year.

When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.

In Pennsylvania, such concerns may arise more often than not. A recent study showed that in 2008-09, over sixty percent of the cases before the PA Supreme Court involved a litigant, lawyer, or law firm that had previously donated to at least one justice on the bench.

And as the cost of judicial campaigns continues to rise to stratospheric heights, these donations are crucial to a prospective judge’s campaign:

This year, 16 states will hold contested elections for seats on their highest courts, and candidates will raise and spend millions of dollars for their campaigns. In 2008 alone, nearly $20 million was spent on TV advertising in contested elections for 26 state supreme court seats.

Again, Pennsylvanians can relate. The cost of the 2009 Supreme Court election between now Justice Joan Orie Melvin and Superior Court Judge Jack Panella reached $4.7 million.

There is legislation pending in Harrisburg that would enable voters to decide for themselves how they would like their state appellate judges to be selected. Pennsylvanians should be afforded the opportunity to choose merit.

On Wednesday retired Supreme Court Justice Sandra Day O’Connor visited the Chicago Bar Association to urge Illinois to change the way it selects judges from judicial elections to merit selection. As evidence that the state’s current method of selection is fraught with both real and potential conflict, Justice O’Connor cited the controversial 2004 Illinois Supreme Court election.

“It cost just over $9 million for that race. As you might have guessed, the winner of that race got his biggest contributions from a company that had an appeal pending before the Illinois Supreme Court. You like that?”

O’Connor was referring to Supreme Court Justice Lloyd Karmeier, who won a hard-fought race Downstate, then voted — as part of a unanimous court — to throw out a $1.2 billion class-action suit against State Farm Insurance, which had given Karmeier $350,000. He was part of a 4-2 majority that dismissed a $10 billion verdict against Philip Morris.

“Sounds a lot like the Caperton case, doesn’t it?” O’Connor said, referring to a West Virginia case in which the U.S. Supreme Court ruled that a judge was out of line ruling on behalf of a mining company that largely funded his campaign.

While the Illinois’ Judicial Inquiry Board found no ethics violation on the part of Judge Karmeier, Justice O’Connor emphasized that the flood of money coming into state courtrooms via judicial elections is the greatest threat to the judiciary.

The U.S. Supreme Court in Caperton declared that even the appearance of impropriety may at times require a judge to step down from deciding a case. Yet despite such strong language from our country’s highest court, slippery situations like the one in Illinois continue to arise. Stricter recusal guidelines are not an adequate solution. Illinois and other states (e.g. Pennsylvania) that continue to elect their judges would be wise in heeding the advice of Justice O’Connor.

Earlier this week Gavel Grab reported on the findings of a study showing that judicial diversity in the state courts is better achieved through merit selection than through judicial elections. The report, entitled “Examining Diversity on State Courts: How Does the Judicial Selection Environment Advance—and Inhibit—Judicial Diversity?,” was conducted by the nonprofit, non partisan research group American Judicature Society.

Several studies have been conducted on this issue in the past, however this recent study extends the line of scholarship in three notable ways. First, while previous studies have been relatively limited in scope (for instance, examining only the judges in one state), AJS looks at the judiciaries of all 50 states. Second, AJS specifically identified the method of selection for each individual judge in the dataset. Lastly, the study accounts for additional political, institutional and contextual factors beyond selection method that may structure the selection environment.

Gavel Grab alerted us to a new bill in California that seeks to ensure judicial impartiality by requiring judges to recuse themselves in cases involving a party that had contributed significantly to their campaign. Under the new law, a judge would be prohibited from hearing a case if he or she had received over $1,500 in campaign donations from a party within the past 6 years. The bill has passed in the House and now moves to the Senate.

Money is the easiest way to sully public confidence in the integrity of the bench. A litigant should never have to worry that the opposing side has the upper hand in a legal dispute because, for instance, her attorney donated money to the judge. Perhaps the judge is still able to remain impartial. But the harm has still been done. Be it $50 or $5000, one side giving money to the “neutral arbiter” is inherently at odds with our notions of justice.

Money has certainly raised concerns in Pennsylvania. A recent report by the nonprofit, nonpartisan research group American Judicature Society reveals that of all the civil cases heard by the Pennsylvania Supreme Court in 2008-09, nearly 2/3 involved a litigant, lawyer, or law firm that had donated to the campaign of at least one of the seated justices. In nearly 1/3 of cases a party had contributed to at least four of the justices.

At first blush, the California bill seems sensible but it is not a cure-all for the failings of judicial elections. If the goal is judicial impartiality—arguably the most critical element of out justice system—then why stop halfway? Why allow judges to raise money and run in contested political elections at all? Instead of creating a half-hearted compromise, why not demand a more perfect solution?

On Tuesday PA Law Weekly (subscription required) reported that three of the sitting justices on the Pennsylvania Supreme Court made political contributions with unused funds raised for their own campaigns.

After being elected to the high court last year, Justice Joan Orie Melvin transferred the remaining $30,093.96 in her account to the campaign of her sister, Senator Jane Orie. In addition, campaign finance reports reveal that two other justices—J. Michael Eakin and Thomas G. Saylor—sent a combined total of $36,475.26 to three political action committees (PACs) upon being elected or retained.

While not pointedly prohibited, such practices have been ethically condemned.

Though the Code of Judicial Conduct does not specifically bar such activity, several informal opinions from a judicial ethics advisory group, the Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges, have advised judges to not personally contribute to political candidates or political action committees and to not dispose of extra campaign money by making such contributions.

The Code only expressly allows judges to send left-over campaign money to political parties. The Ethics Committee has been more forthright in its assessment of what is and is not acceptable.

From a May 2005 opinion:

A judge who was a candidate for judicial office cannot distribute unspent campaign funds to: the campaign of other public officials in local or statewide elections; the campaign of other judges in local or statewide elections; a political action committee; an organization supporting law related activities, such as Philadelphia Bar Foundation, Pennsylvanians for Modern Courts, IOLTA, Client Security Fund, Lawyers for Lawyers; law schools; charities….The residual funds can be given to political parties, retained for the judge’s future election or retention, or returned to the contributors pro rata.

Shira Goodman, deputy director of Pennsylvanians for Modern Courts said such contributions were “distressing,” and took no comfort in the claim that “everybody’s doing it.”

[I]f I can review [the state conference opinions] and you can review them and we come to the conclusion it’s problematic [to make such contributions] and we know the state conference is there to answer, I cannot foresee an explanation that could explain this away.

The assertion that the rules are confusing is no excuse. Justices serve to uphold the law and at times must navigate the most complex areas of legal terrain. In turn, we hold our justices to the highest of standards. That is why any showing that a justice improperly managed campaign funds—even inadvertently—casts a pall over the entire system and erodes the public confidence. These reports are just the most recent example in an ever-growing list of reasons why judges should get out of the fundraising business altogether.

The Brennan Center for Justice at NYU School of Law has published a new article analyzing the negative impact the recent Supreme Court decision Citizens United v. FEC will likely have on state judicial races.  In that case, the Court overturned a long-standing ban prohibiting corporate expenditures in elections.  As a result of the ruling, corporations and unions will now be permitted to spend directly from their coffers to support or oppose candidates for elected office.  These include candidates for state judicial benches.

Buying Justice: The Impact of Citizens United on Judicial Elections, penned by Adam Skaggs, counsel at the Brennan Centers Democracy Program, reviews the recent trends in judicial election spending, surveys several states in which the decision is likely to have the greatest impact, and offers solutions to combat the deleterious effects of the ruling.

Skaggs beings with a telling quote from retired Supreme Court Justice Sandra Day OConnor, a long-time opponent of judicial elections:

If you’re a litigant appearing before a judge, it makes sense to invest in that judge’s campaign. No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.

[After Citizens United], we can anticipate labor unions and trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.

Based on numerous polls conducted across the country over the past ten years, it would appear that both the perception and the reality of judicial impartiality were imperiled even before Citizens United.  Skaggs cites a  poll showing that nine out of ten Pennsylvania voters believed large campaign contributions influences judicial decisions. In fact, Skaggs flags Pennsylvania as one state in which current problems with judicial races will only be exacerbated due to the Courts decision:

Before Citizens United, Pennsylvania prohibited corporations from making any contribution or expenditure in connection with the election of any candidate or for any political purpose whatever.  But that has not kept big money out of judicial elections in the Keystone State.  In 2009, Democrat Jack Panella broke a state record for individual fund-raising spending more than $2.6 million dollars but still lost to Republican Joan Orie Melvin.  Orie Melvin challenged Panella over his connections to his campaign supporters, lambasting him for taking $1 million from the Philadelphia Trial Lawyers Association and asking, ‘Is it pay-to-play? Is it justice for sale? I don’t know, but it sure sounds suspect.‘

The report spotlights PMC’s advocacy for a switch to a merit-based system of selection for the states appellate level judges:

Editorial boards across Pennsylvania have echoed the calls to adopt merit selection; in the words of the Philadelphia Inquirer, Pennsylvanians would have more faith in their judiciary without legal scandals and campaign-donor conflicts arising from judicial elections.

An editorial in today’s Pittsburgh Post-Gazette proclaims that merit selection must not be buried with the bones of past reform initiatives in the Commonwealth’s “elephant’s graveyard of good ideas.”

Says the Post-Gazette,

Gov. Ed Rendell has long backed the idea and in his last year in office is supporting bills in the Legislature to reform the crazy way this state chooses judges. Pennsylvania is one of only six states that elects all its judges [in partisan elections] and being among the exceptions isn’t a sign of enlightenment.

Considering the high price tags on judicial races, the recent court scandals that have rocked the public’s confidence in our system, and an overall lack of relevant information available to voters about the prospective judges, it is clear that judicial elections do a grave disservice to Pennsylvanians.

But legislation pending in the Capitol could change all that.

The bills — HB 1621 and 1619 (sponsored by Rep. Matt Smith, D-Mt. Lebanon) and SB 860 and 861 (Sen. Jane Earll, R-Erie) — demand urgency. To become law, the same bill must pass in successive sessions of the Legislature and then win in a public referendum.

This is one good idea for Pennsylvania that shouldn’t die.

Merit selection for Pennsylvania’s appellate judges has been a much debated reform issue for over years. In a recent new conference on the subject, longtime proponent Governor Rendell proclaimed that the switch from electing judges to selecting them via merit selection was long overdue. Legal Intelligencer reporter Leo Strupczewski writes this week that the proposal is finding support from some unlikely sources.

One potential ally—trial lawyers.

Mark Phenicie, legislative counsel for the Pennsylvania Association for Justice, said there are a “significant number” of PAJ members who are in favor of the appointive process.

In fact, the association may revisit a 10-year-old board of governor’s resolution supporting judicial elections this summer, Phenicie said.

Along with the possible creation of new alliances, merit selection may be given a further boost from the negative media attention paid to last year’s fundraising record-breaking Supreme Court election between Justice Joan Orie Melvin and Superior Court judge Jack Panella. At the news conference, Rendell was quick to point out that the race for the high court has been growing more and more costly over the past decade—$2.1 million in 2001 to nearly $4.7 million in 2009. Francis P. Devine III, a partner at Pepper Hamilton and seasoned supporter of merit agreed that this presents “a great opportunity” for change.

Yet for merit to have a shot at success, the current legislation must be voted out of the House Judiciary Committee and onto the House floor. The bill would need to pass in the House before moving to the Senate. PMC’s executive director Lynn Marks and deputy director Shira Goodman are “cautiously optimistic” that there are enough ‘ay’ votes in committee to make this happen.

Backing up their argument for a vote, Marks and Goodman said they welcomed a debate on the issue in the Legislature and that support for merit selection is at its strongest since the days following the Rolf Larsen scandal.

With court-related headlines dominating recent news cycles, the movement has been “gaining momentum steadily,” Goodman said.

Now is the time to push for change.