judgesonmerit.org

In Miamisburg, Ohio, the race to replace retiring municipal Judge Robert Messham is getting ugly. Partisan bickering and accusations of misconduct are making headlines. The twist? The candidates are both on the same side, at least politically. Candidates Robert Rettich and John Kolberg are locked in an increasingly messy squabble over the Republican nomination. The Dayton Daily News explains the situation:

Kolberg, who has served as magistrate at the court for 19 years and as an acting judge since 2002, was recommended over Rettich by the Montgomery County Republican Party Screening Committee in January.

But on April 14, the precinct captains in the court’s jurisdiction voted 23-4 to endorse Rettich.

Former Miami Twp. Trustee Dave Coffey, who is helping Kolberg’s campaign, said the April meeting was an “ambush.” Instead of focusing on judicial qualifications, Rettich supporters questioned Kolberg’s legitimacy as a Republican, Coffey said.

In addition to the political infighting, there are allegations that a Rettich supporter tried to get the retiring judge to convince Kolberg to withdraw, by threatening the jobs of current court employees.

Messham told the Dayton Daily News that Miami Twp. Trustee Deborah Preston told him April 16 that if Kolberg did not withdraw from the race, Rettich would fire all current court employees once he is elected.

Preston also told Messham that, if he brokered the deal to get Kolberg out of the race, he would be allowed to serve as a visiting judge at the Miamisburg court after he retires, Messham said.

Messharm said Preston never mentioned Rettich’s name, but said, “Bob, I’m only the messenger.”

Why is the endorsement of the County Republican Party causing such a scrap? Because of cold political reality; without a party endorsement, most judicial candidates in partisan races have a vanishingly small chance of reaching the bench. Endorsed candidates have a huge advantage in a party primary. If a candidate who fails to win a primary even has the option to run as an independent, he or she will be facing opponents who have the benefit of their parties’ assistance with campaigning and raising funds.

In a partisan judicial election, the endorsement of a party is invaluable. Party politics become more important than the experience and ability of the candidates. Qualified judges can reach the bench only if they’re also sufficiently skilled politicians. They must navigate the often contentious currents of party endorsements, and the often confusing ethical rules that try to balance the need for political campaigning against their impartiality on issues they might rule on once they’re elected.

We believe that Pennsylvanians deserve a system that gets appellate judges out of the business of raising funds and campaigning for votes. We think that skilled judges should be able to reach the Pennsylvania appellate bench on the strength of their experience, their ability, and their knowledge of the law, not their skill at winning political points. That’s why we support the switch to Merit Selection of appellate judges in Pennsylvania.

Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, went before a special committee of the Pennsylvania Bar Association on Wednesday, to make the case for reforming judicial selection in Pennsylvania.

The PBA is studying the possibility of recommending a Constitutional Convention, which would rewrite the Commonwealth’s founding document. The Constitutional Review Commission has been accepting testimony about what parts of the constitution should should be modified if a convention is called. Marks told the committee that PMC doesn’t have a position on whether or not a convention should occur. If a convention is called, however, PMC believes it should include changing the selection of appellate judges from partisan elections to a Merit Selection system.

Marks’ testimony was reported in the Wilkes-Barre Times Leader:

[T]he current, partisan process of electing appellate court judges is fraught with problems that have undermined the public’s confidence in the judiciary.

Among the most pressing concerns involves the huge amount of money statewide judicial candidates must raise to fund their campaigns – money that primarily comes from attorneys and special interest groups that have led the public to believe that “justice is for sale.”

“When judges preside over cases involving lawyers or parties that contributed financially to their campaign . . .. the public cannot help but be concerned that a judge’s impartiality might be affected,” [Marks] said.

The judicial system in Pennsylvania is organized by Article V of the state constitution. In addition to changing the selection system for appellate judges, Marks recommended changes that would improve the judicial discipline system, and ensure adequate funding for the courts. A .pdf copy of Marks’ testimony is available from the Commission’s website. Video of the hearing will air on PCN at 5 pm on Saturday, April 30th.

In a 4/25 editorial, the Chicago Sun-Times calls for new standards to require a judge to step down from cases involving campaign contributors. The paper laments the increasing price tag of judicial elections, and the perception that campaign contributions to judges have an influence on their rulings.

How do judges raise money to run for office without creating at least the appearance — if not the reality — that somebody’s buying a favorable judicial ruling down the line?

It’s a problem that’s getting worse, as big money has started pouring into Illinois judicial races. Last fall, more than $3 million was funneled into the retention campaign of Illinois Supreme Court Chief Justice Thomas L. Kilbride — the most in state history for a retention race.

As judicial campaign spending continues to increase, mandatory recusal rules are an increasingly important tool. They help mitigate the appearance that impartial jurists might be influenced by campaign donations. They also prevent judges who might be tempted to show favoritism from ruling on cases involving donors. But we think a better solution would be to relieve appellate judges of the need to raise campaign funds in the first place.

Under Merit Selection, there is less potential for influence, real or perceived, because judges can reach the bench without needing campaign donations. Appellate judges are evaluated based on their knowledge, experience and skill, instead of their ability to amass campaign funding. And when they go before the voters in retention elections, they’re not running against a political opponent. They’re running on their service on the bench, a record that the public can look to when deciding if they deserve to be retained.

Potential conflicts of interest aren’t completely eliminated, of course, but one important source is taken out of the equation. Judges can rule without the specter of campaign donor influence hanging over their decisions, and the public can be more confident in the fairness and impartiality of the courts. That’s one important reason why we support the switch to Merit Selection for Pennsylvania’s appellate judges.

An op-ed in the New York Times by Dean Erwin Chemerinsky and Professor James Sample p How Do I Make My Ex Want Me Back After I Broke Up With Her oints out the problems inherent in electing judges, focusing especially on the money problem.

Chemerinsky and Sample conclude that the most viable solution to the problem is to recognize that because judges are different, judicial elections should be different.  They urge that states impose, and the Supreme Court approve, limits on campaign contributions and spending in judicial elections (even if such limits remain unconstitutional in other elections).

We agree that judges are different and should be selected differently than other officials.  But we remain committed to wholesale change — the elimination of judicial elections (at least at the appellate level).

We are not alone in this commitment, as is evident from a letter to the editor from New York attorney Norman Greene: “Eliminating all judicial elections — and replacing them with well-designed appointment systems as are in effect in a number of courts in New York and other states — is . . . the means most likely to achieve overall judicial reform.”

Finding a better way to select judges represents the best way to solve the money problem.  But it also solves other problems inherent in elections — problems like the lack of relevant information for voters seeking to make informed decisions; the focus on political savvy and fundraising skills as opposed to qualifications to serve; the random factors like ballot position and name recognition that disproportionately affect election results; and the lack of diversity on our appellate courts.

To us, there is a common solution to these problems: Merit Selection of appellate court judges.  PMC and PMCAction will continue to work for such reform in Pennsylvania.

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An editorial in the New York Times this week describes the damage judicial elections do to the judiciary. The editorial specifically looks at the “furiously contested” Wisconsin Supreme Court election that attracted national attention, and describes it as showing “how politics and money can debase the law.” As discussed in earlier posts, the election was a close one and there will likely be a recount. However, the editorial is accurate when it announces: “Whoever ultimately gets the job, all of Wisconsin has lost. This nasty, highly politicized race is raising serious questions about the impartiality of the state’s highest court.” The editorial goes on to describe the $3.58 million spent by outside groups, largely on negative television advertisements.

We agree that expensive, nasty, and politicized judicial elections are costly, and that the price is the public’s confidence in a fair and impartial judiciary. The editorial ends with a call which we echo – for judicial selection by merit panels. Merit Selection is the best way to take money and politics out of the process, and the best way to ensure fair and impartial courts.

Citizens’ Voice reports that of the sixteen candidates for Luzerne County judge, only two did not make contributions to judicial campaigns between 2001 and 2009. Eight candidates contributed to Mark A. Ciavarella’s 2005 retention campaign. Ciavarella was recently found guilty of racketeering and other charges. Eight candidates contributed to Michael T. Toole’s 2003 judicial campaign. Toole was recently sentenced to thirty months in a federal prison for accepting illegal gratuities from an attorney and failing to report income on a federal tax return. Of the candidates who contributed to judicial campaigns some felt pressure to do so from the “culture and environment,” while others claim to have felt no such pressure.

The candidates are treating contributions to their own campaigns in various manners. Some candidates are declining to accept contributions from lawyers. Lesa Gelb is one such candidate, and explaining her decision she said: “It’s a distasteful way of doing business. It’s time we moved past this.” Mike Blazick is another candidate who will not accept donations from lawyers, and he is one of the two candidates who did not contribute to any judicial campaigns between 2001 and 2009. Blazick gave his opinion on contributions from lawyers: “I have always been uncomfortable with lawyers contributing to judicial campaigns. I think that it’s unfair that lawyers are put in a position to contribute to judicial campaigns and then have to appear in those judges’ courtrooms.” Some candidates will accept contributions only from lawyers they are familiar with, while still others will seek and accept donations from lawyers generally. Vito DeLuca explained his decision to accept contributions from lawyers based on his inability to spend a lot “of my own money.”

The cycle of contributions is a good reminder of the role money plays in judicial elections. The money required to run a competitive judicial campaign can financially intertwine lawyers and judges who will later interact in courtrooms.

Early yesterday it appeared that JoAnne Kloppenburg had a narrow lead over Justice David Prosser in the election for the Wisconsin Supreme Court, but the Thursday discovery of thousands of uncounted votes has Prosser soundly in the lead. Waukesha County Clerk Kathy Nickolaus announced yesterday that she failed to save and report 14,315 votes from the city of Brookfield. From those votes, Prosser gained 7,582 votes over Kloppenburg.

There is some uncertainty about what will happen next, but the possibility of a recount remains. Some believe that the numbers are correct, while others are calling for an independent investigation over the recovery of the results. There has also been some criticism of the clerk’s election system. Although in general compliance with state and federal guidelines, an audit recommended that she should improve the security and backup procedures.

Whether or not a recount occurs, the Wisconsin election raises questions about the use of judicial elections. An article in Business Insider examines judicial elections. Almost 1.5 million votes were cast in this election, a lot for a judicial race. But the money and the politics involved in the process have some people asking “Is this how we want justice to work?” Noting that the executive and legislative branches are accountable to voters, the article questions the wisdom of treating judges the same way. “Judicial elections are intended to make judges accountable to the voters. That’s undoubtedly democratic, but I do not think it is wise. Judges should ultimately be accountable to the law, or at least to their best efforts to understand, interpret and apply it.” Merit Selection is the best system to remove politics and money from the process, and to allow a focus on the law.

The Wisconsin election for Supreme Court Justice that made national news took place on Tuesday and was still too close to call the morning following the election. Nearly 20 hours after the polls closed challenger JoAnne Kloppenburg had claimed a narrow victory of 204 votes over Justice David Prosser, but with the margin of merely 1/100^th of a percent this will not end the race. The election has been full of political turmoil due to large amounts of spending from outside special interest groups, prompted in large part by a new controversial law causing problems between state Republicans and Democrats.

The close margin of the race brings new political issues to the judicial selection process – the likelihood of a recount and the potential for litigation. Once the vote count is official, either candidate may request a recount. Prosser himself acknowledged that: “There is little doubt there is going to be a recount.” If the margin is less than 0.5%, the state foots the bill. In a margin between 0.5% and 2%, the candidate who requests the recount must contribute $5 per ward. Recounts are expensive for the government, often costing more than $1 million, much of which will be paid for by the counties.

After a recount, the possibility remains that the issue could go to the courts. Not only would litigation bring more money into an already expensive campaign, it would continue to politicize the process. Under state law, Chief Justice Shirley Abrahamsom would appoint a judge to hear the case. Abrahamsom and Prosser have clashed on the court and publicly. If the case were to make it to the Wisconsin Supreme Court, it would be heard by a court with a 3-3 liberal-conservative split because Prosser would need to recuse himself.

The twists and turns of this election demonstrate the dangers of a judicial selection process that depends on money and politics. Now, even more money could be spent on a recount and ensuing litigation. Further problems may be caused by the direct involvement of courts making decisions about the next person to sit on the state’s highest court.

Clearly, money and politics have become dangerously intertwined in the judicial selection process. It is time to take the focus off of money and politics, and to put the focus on qualifications and ensuring fair and impartial courts. Merit Selection is designed to do just that.

DRI, the Voice of the Defense Bar, published a report last Thursday that confirms the outlandish spending and negative tone that have come to characterize judicial elections. The facts and statistics cited in the report demonstrate why a shift to merit selection is necessary to protect the independence of and restore public confidence in the judiciary

The report shows that in supreme court races in the twenty states holding contested elections from 2000-2009, $206.4 million were raised. The report continues: “Frequently, contributors to judicial campaigns are attempting to buy an ideological perspective on a bench or influence on a court.” The amount of money involved in judicial elections gives the public reason to lose confidence in the courts. A 2009 Gallop poll shows that 89% of voters think campaign contributions and their influence on judges is a problem and 90% think judges should not hear cases involving campaign contributors. These figures confirm the dire result of judicial campaign contributions: “the public’s perception of the fairness of our court systems will be lost, leaving judicial independence to hang in the balance.”

DRI’s report provides a list of many of the problems with judicial elections that we have repeatedly discussed here – including the increased use of television ads and negative campaign tactics, as well as growing involvement of out of state groups in judicial elections.

Clearly, there are problems with the process of judicial elections, and the public’s loss in confidence in the courts is directly related to these problems. The perception that justice is for sale harms the justice system as a whole, not only individual judicial candidates.  Merit Selection gets judges out of the fundraising and campaign business and reduces the role of politics and politicking in judicial selection. As a result, merit selection is the best way to ensure the public’s confidence in fair and impartial courts.