judgesonmerit.org

We blogged over the summer about Marion Superior Court Judge Rebekah Pierson-Tracey, who came under scrutiny and was subjected to public outcry for a re-election campaign flyer that appeared to equate financial donations with favorable rulings – suggesting campaign contributions of $150 for ‘Sustained’, $250 for ‘Affirmed’, $500 for ‘So Ordered’, and $1,000 for ‘Favorable Ruling’.

According to the Indiana Business Journal, the Indiana Commission on Judicial Qualifications formally admonished judge Pierson-Tracey this week. The admonishment states that “the judge and her husband, Marion County Democratic Party Chair Ed Treacy, reviewed and authorized the flyer prior to mailing.”

The article reports that an investigation by the judicial disciplinary commission found that Judge Pierseon-Tracey “violated both Rule 1.2 and 4.2(A)(1) of the state’s judicial code of conduct, which require judges to act in a manner that promotes the public’s confidence in the judiciary and in a way that maintains the independence, integrity and impartiality of the third branch.” But the admonishment concludes the disciplinary matter, and no misconduct charges will be officially filed.

It’s interesting that a campaigning judicial candidate should be so unabashed about connecting campaign donations to favorable outcomes in court cases. The admonishment notes that “there is no evidence the judge intended to barter rulings for contributions,” and of course there wouldn’t be – but Pierson-Tracey’s flyer is suggestive of how cynical the judiciary may be becoming about the perception that justice is for sale. It’s time to explore other options for selecting our judges.

In a thoughtful piece in the Huffington Post, Lisa McElroy and Amanda Frost explore the issue of recusal. The context is the Proposition 8 case in California and claims that the presiding judge should have recused because of his sexual orientation. The article’s central premise gets to the heart of what recusal is really for, namely, cases where the judge has a personal financial interest in the outcome of the case or a close relationship with the parties or lawyers in the case such that his or her impartiality can reasonably be questioned:  “But essential aspects of the human condition — such as sexual orientation and loving relationships — cannot be grounds for requiring that a judge step aside.”

The article demonstrates a critical appreciation for what we should strive for when selecting judges, the most qualified,fair and impartial judges we can get:

The truth is that every judge comes with a race, gender, sexuality, family, friends, and a host of other biological characteristics and personal experiences that color their view of the world. That’s a good thing. We want black (and white) judges to decide cases about affirmative action. We want female (and male) judges to decide cases about gender discrimination. And we want gay (and straight) judges to decide questions about same sex marriage. Even if we could find race-less, gender-less, asexual hermits to serve as our judges, why would we want such isolated individuals to address the vital issues facing our society? Rather than try to strip judges of their humanity, we should instead seek to fill judgeships with thoughtful people who strive to understand perspectives that differ from their own and remain neutral when deciding cases questioning viewpoints they personally hold.

McElroy and Frost get it just right.

The Chicago Tribune has written a strong endorsement of Merit Selection in a recent editorial.

The editorial tracks the odyssey of Justice Lloyd Karmeier of the Illinois Supreme Court, who has had lawsuits filed against him for failing to recuse himself during litigation against the State Farm insurance company, WHICH contributed substantial sums of money to his election campaign and in whose favor he cast the deciding vote on certain claims of the lawsuit.

Karameier, and his opponent during the race, Gordon Maag, spent a combined total of $9.3 million during their contest, which the Tribune characterizes as “a high-stakes proxy battle between businesses and doctors and the lawyers who sue businesses and doctors,” with Karmeier receiving substantial business backing, and Maag financed largely by the plaintiff’s bar. It seems to have been a battle between special interests, with the good of the Illinois public largely sidelined.

The Tribune sums up nicely the effect that money has on public confidence in elected judges:

A judge should remove himself from a decision if there’s a question about his impartiality. A judge may think he can rule without favor in a case involving a big benefactor — but no one else will. The public has to have some confidence that judges will rule on the law and not for their own political benefit…. Astonishing amounts of money are being spent here and around the country on judicial races. That money’s not seeking the best, most impartial courts. That money’s trying to sway the courts in one direction or the other.”

Judges are supposed to be impartial, but a system that essentially requires judicial candidates to seek benefactors will cost the judiciary the perception of impartiality among the public. It is very difficult for the public to have faith in a judge who seems to have shareholders. The public needs a judge who knows the law and will reliably apply it without bias.

The editorial wraps up with this statement: “If we can’t take money out of politics, we can try to take the judiciary out of politics. We need a system of judicial appointment with political checks and balances, a merit system.”

We agree, and hope that the people of both Illinois and Pennsylvania soon have the opportunity to choose such a system.

An article in the Philadelphia Inquirer outlines the several ethical quandaries of Thomas Nocella, who was elected to the Common Pleas Court Judgeship this past election.

The article says that Nocella credits his connections with Philadelphia Democratic Party boss U.S. Rep Bob Brady, and Brady’s influence with the ward leaders, for getting him elected. “[Nocella] pointed out that he had done years of free legal work for the party and said the judgeship was his reward,” the article notes, quoting him as saying “That’s the way it’s done in Pennsylvania.”

Nocella was sanctioned and fined by the city Ethics Commission in 2009 for his involvement in a political action committee that donated to the mayoral campaign of Brady and to Carol Ann Campbell’s City Council campaign without required disclosure statements. When the Ethics Commission tried to collect fines, they found that Nocella and another fund official, Ernesto DeNofa, had drained money from the PAC to pay Brady’s campaign bills. In addition, Nocella took $2,500 for himself, for what had previously been declared pro bono work.

Nocella has also been snarled in a lawsuit accusing him of fraud and deceit. In 2005, he helped sell off property owned by the Veterans of Foreign Wars. Nocella pocketed $60,000 of the $507,500 transaction, stating that he was the secretary of VFW Straughter-Carter Post 6627, even though he is not a member of the VFW nor was ever authorized to act as secretary. He called the money an “accommodation,” asserting that he was vital to the deal’s success.

When prompted about his “Recommended”  rating from the Philadelphia Bar Association, Nocella said that during his interview with the Bar, no one asked him about the VFW case, or about his brush with the Ethics Commission.

And now Nocella is a judge. “It sends a message that judges are above the law, and I think that’s a very troubling message for people to hear,” Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, is quoted as saying. “I am troubled by the message it sends, and I would think other judges would be troubled.”

Political party maneuvering, “the way it’s done in Pennsylvania”, makes it very difficult for the public to be confident that judges are reaching the bench because they are the most qualified to interpret the law and serve the people.  Pennsylvania deserves judges who embody the best qualities and traditions of our legal system, and who are seated because of those merits – not because of who they know.

In a recent editorial, the Lancaster Intelligencer Journal has come out strongly in support of Merit Selection and present efforts in the Pennsylvania legislature that seek to establish Merit Selection in our state.

The editorial challenges its readers to see if they can remember the judges they voted for last week.  As noted by the Intelligencer Journal, even voters who take time to inform themselves about judicial candidates are rarely able to have more than a vague idea about the candidates’ qualifications or views, as judicial candidates must take care to not be too specific about how they would rule on issues that might come before them. Yet, the judicial candidates must raise large amounts of money if they wish to remain competitive in the elections, get their name out, and secure a seat on the bench.

This money often ends up being contributed by special interest groups. Citing the recent report, “New Politics of Judicial Elections 2009-10,” the editorial notes that Pennsylvania judicial candidates have raised and spent $15.5 million on races since 2007, ranking us the highest in the nation. These contributions raise serious questions about how our judges are selected, and negatively impact the perception of impartiality of our sitting judges.

The editorial concludes with a mention of the legislation in Harrisburg, co-sponsored by state Rep. Bryan Cutler, R-Lancaster, which would amend the state Constitution to allow for nomination of judges based on merit, and an exhortation to its readers to embrace Cutler’s legislation, “bringing merit into the selection process.”

We agree, and hope that Harrisburg is listening.

In a recent CitizenVox post, Sean Siperstein discusses the recent Brennan Center and Justice at Stake report, The New Politics of Judicial Elections: 2009-2010, and how the Citizens United decision has changed the playing field of judicial politics, such that “a flood of special-interest money has increasingly politicized what the Framers envisioned as our least political branch of government.”

The report shows that the 2009-2010 cycle contained the highest spending on judicial campaigns in history, identifying special interest financing behavior as part of a “coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law.”

Siperstein suggests, invoking the research of historian Gordon Wood, that Americans have become concerned by large, unequal campaign contributions, as they seem to “negate the effects of equal suffrage and violate the equality of participation in the political process,” and that now the judiciary itself, “a critical backstop on behalf of the Constitution and the law,” is affected by those same forces, and, after Citizens United, are subject to the same financial pressures to behave a certain way as the executive and legislative branches.

“The threats of spending on their opponents,” Siperstein says, “their non-retention in office, and even politically-motivated calls to impeach them—all of the above are documented in this latest report, and undermine the independent judiciary’s vital role.”

We agree. Judges burdened by special interest money may not be perceived as impartial when those special interests, or cases involving topics that those special interests advocate or disparage, come before them. Justice should be something that all people in this nation should have unquestioned equal access to – not just the highest bidders.

Siperstein calls for public action against Citizens United and the daunting campaign funding latitude it promotes, noting that efforts are being made and coordinated all over the nation to get the decision overturned. “Our democratic society, rooted in the people, remains despite this corrosion on elections and on the judiciary, and it has an essential mechanism by which to reassert itself: amending the Constitution to prevent corporate control of our elections.”

In the lead up to yesterday’s election, discussion increased concerning the effect of money on the judicial races, and whether Pennsylvanians were being served by the most qualified judges, or simply the best-connected ones.

A Philadelphia Daily News article pointed out that despite the guidance of judicial retention recommendations published by the Philadelphia Bar Association, the city’s “haphazard” judicial selection process – in which ballot position, ethnicity, or connections play large roles in who gets chosen – means that sometimes unqualified judges will sit on the bench.

The article quoted Shira Goodman, deputy director of Pennsylvanians for Modern Courts, remarking that elections are “designed to reward political connections, success at fundraising and being good on the campaign trail – none of which are necessarily relevant to being a good judge.”

Philadelphia Bar Association Chancellor Rudolph Garcia said that the Association has supported a change to merit-based selection of appellate judges, and that reform is needed at the trial level as well. “Most voters don’t appreciate the importance of this and don’t really know anything about the candidates,” Garcia said. “Sometimes they’ll walk into the voting booth and just pick first 10, or they’ll look at a name and say, ‘I’m Irish and that’s an Irish name, so I’ll put that guy in.’ ”

The Pennsylvania Independent reported that, according to experts and court reformers, name recognition would be a key factor for candidates seeking judge seats on the Superior and Commonwealth courts, not qualifications.

The article quotes state Rep. Bryan Cutler, R-Lancaster, co-sponsor of House Bills 1815 and 1816 seeking to amend the Pennsylvania Constitution to provide for Merit Selection of appellate judges, in an effort to prevent politics from eclipsing substance.

“One of the frustrations I have always had is those who go out and engage in political campaigns but obviously can’t say what they would do,” Cutler said. “I want a process that depends on credentials and qualifications, not who can get out the most voters.”

A Merit Selection system would ensure that only qualified judges are seated, while maintaining the voters’ mandate to decide whether a judge should remain seated. “When a judge comes up for retention vote, everyone will have a record to go on,” Cutler said. “You won’t have someone without experience, and you won’t have a situation where it comes down to money or popularity.”

It’s election day, and there are many important judicial elections on the ballot. Although we don’t think elections are the best way to choose judges, as long as this is the system in place, we urge voters to educate themselves and go to the polls.  You can find information about the elections on PMC’s current elections page and frequently asked questions page.  You can learn about the pending proposals to change the way we select appellate court judges on the Merit Selection legislation page.

PMC and PMCAction are pleased to announce that the House Judiciary Committee will be holding a hearing on Merit Selection on November 17 from 1:30-3:30 pm in Philadelphia.  The hearing will address the pending Merit Selection legislation, H.B. 1815 and H.B. 1816.

This hearing is an important step in the constitutional amendment process, a process that culminates in a referendum election in which the people of Pennsylvania decide whether to change how we select appellate court judges.  The hearing offers a chance to begin an important dialogue about this critical issue.  We are grateful to the House Judiciary Committee for providing the forum for this public discussion.

The hearing will be held at the University of Pennsylvania, Perelman Quadrangle, Cafe 58, First Floor, Irvine Auditorium.  The address is 3401 Spruce Street, Philadelphia, PA.

The Philadelphia Inquirer wants to know how you decide who to vote for in judicial elections.  So, they’ve created an on-line poll.  They offer four options:

I just look at their political party.

I look at bar association ratings.

I pick the familiar-sounding name.

No clue as to any of the candidates, so not voting.

Take a minute and vote. And if you have another reason that’s not listed there, let us know in the comments.