Archive for the 'Judges' Category

Mar 25 2014

In the Interest of the Law

It’s been said before, ‘merit selection takes power away from the people to choose judges who represent them.’

But, that represents a fundamental misunderstanding of the role of a judge; judges should not represent the people who voted for them. Judges should represent the law and the ability to decide cases before them impartially.

Judges are expected to decide cases based on the facts and the law, not public opinion or campaign promises. In allowing lawyers, law firms and groups who often appear before the court the ability to donate to judicial campaigns, we risk the public perception that judges rule in favor of their supporters. This creates the impression that justice is for sale.

Merit selection allows citizens the opportunity for more meaningful participation in judicial selection. In reality, how much meaningful information is the public receiving about judicial candidates under the current judicial election system? The public is bombarded with numerous names (many of whom they probably never heard of) and the real worth of a candidate is lost beneath all the flashy political signs and slogans rampant in campaigns.

Under merit selection, the chaos of campaigning is removed thus allowing for more productive interaction between prospective judges and the public. Through the initial merit selection process, only the most qualified of applicants are given consideration for appointments. As members of the nominating commission, citizens are then able to engage in more meaningful consideration of nominees, rather then wading through lists of names. The public may also give input to the Governor before he or she makes the nomination and during the confirmation hearings before the Senate.

Most importantly, retention elections provide the public with another opportunity for engaged participation. Retention elections allow the public to decide whether a judge should stay on the bench based on the judge’s track record, not on his or her campaign capabilities.

The most important thing to remember is that while the public is still engaged through the nominating commission and retention election process, the law is still the primary concern. Both the nominating commission and the retention election is concerned about the ability of candidates to objectively represent the law, not a specific interest group.

In essence, merit selection is not about taking power away from the people, rather it’s about providing the public with the best chance of having a fair and impartial judiciary.

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Mar 17 2014

One Step Forward for Minnesota and Merit Selection

This week, Minnesota has gotten one step closer to moving to a merit selection system.  In doing so, the state has progressed towards finally putting to bed the partisan-politics-laced, big-money­-fueled judicial election system in their state.  The very same election system which in recent years has plagued judiciaries across the the country and eroded the the public trust in our court system.

 

So, what happened?  The Minnesota Senate Subcommittee on Elections approved the proposed constitutional amendment to change the state’s judicial election system to a merit selection system and sent it up for a full vote of the Senate Rules Committee.  Specifically, “the proposal calls for gubernatorial appointment of judges from a list of finalists recommended by a merit selection commission, a retention (up or down) election if the judge seeks to stay on the bench, and nonpartisan evaluation of judges’ performance by an independent performance evaluation commission.”  Last year, the House version of the bill was approved in the House Elections Committee and remains pending in the House Judiciary Committee.

 

Under Minnesota’s current judicial election system, races for judicial seats have become policy battlegrounds, with judicial candidates campaigns’ being bankrolled by corporations, lobbyist groups, trial attorneys, and political action committees.  These are the very groups and individuals who often appear before the these courts.  Obviously, this doesn’t do much for the the public perception of impartiality in judicial decision-making.  With fundraising in the millions, judicial elections now have taken on the character of legislative races, with candidates employing the use of attack ads and running on platforms.  In support of the constitutional amendment, former Minnesota Supreme Court Justice Eric Magnuson when addressing legislators said, “A judge can’t run on a platform. That’s antithetical to what a judge does.  A judge decides cases based on the law and facts in front of him or her.”

 

Like Minnesota, Pennsylvania has a constitutional amendment (House Bill 1848) making its way through the state legislature that would replace judicial elections for all judges to a merit selection system to choose statewide judges.  Backed with bipartisan support, the bill would help ensure that only the most experienced and qualified judges serve on the bench.  A merit selection system is necessary to take judges out of the business of fundraising and partisan politics out of our courtrooms. In doing so, this would be a big step toward restoring the public’s faith in a fair and impartial judiciary, untainted by the bias generated by the current partisan judicial election system.

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Mar 03 2014

New Pennsylvania Code of Judicial Conduct Rule Bars Judges From Hearing Major Donors’ Cases

Published by under Judges

In January, the Pennsylvania Supreme Court announced the adoption of a revised Code of Judicial Conduct which will go into effect July of this year. One major area affected by the revised rules revolves around campaign contributions to judicial candidates. Under

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the new rules of judicial conduct, judges will have to recuse or disqualify themselves from hearing cases involving parties whose campaign contributions “would raise a reasonable concern” about a judge’s ability to be fair and impartial.

Unlike some states which have enacted fixed monetary limits, the Pennsylvania Code’s rule on campaign contributions is far more subjective. Because the new code does not explicitly define what a “reasonable concern” is, it would be left to the discretion of the judge to make his/her own interpretation based on the facts and the parties involved. “Ultimately, each judge will have to weigh the donations and the timing of those donations when considering recusal,” said Northampton County President Judge Stephen Baratta. Pennsylvania Chief Justice Ronald Castille believes that in adopting the “reasonable concern” standard, it ensures even application by judges across the entire state.

WIth judicial candidates now running campaigns that generate contributions in the millions of dollars, public perception has been a significant issue, not just in Pennsylvania but nationwide. A 2013 poll by the Brennan Center and Justice at Stake found that “the public is skeptical of allowing campaign contributions in judicial contests. Nearly 90 percent of voters across the country think campaign donations have at leas some influence on judges’ decisions and more than nine out of ten people said judges should recuse themselves when one party in the case has donated directly or indirectly to a judge’s campaign.”

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Feb 25 2014

Upcoming Illinois Retention Election Reminds Us Why Merit Selection Is Needed Now More Than Ever

Illinois Supreme Court Justice Lloyd Karmeier, whose 2004 campaign race to unseat Appellate Court Justice Gordon Maag raised more than $9 million between the two campaigns, is up for retention election in November.  As the retention election approaches it conjures up memories of just how much of a game changer his Illinois judicial election was ten years ago.

The 2004 race between Justice Karmeier and Justice Maag was the most expensive campaign for a state Supreme Court seat in American history and completely changed the fundraising landscape in judicial elections nationwide.  Justice Karmeier’s campaign raised $4.8 million and relied heavily on in-kind contributions from Republican organizations and Chamber of Commerce groups.  Justice Maag’s campaign amassed $4.3 million dollars receiving a multitude of donations from various political action committees, lobbyist groups, and trial lawyers.  And as the money came rolling in, so did the mud slinging and attack ads by the candidates’ supporters.

“The Karmeier race turned out to be a harbinger of a trend that unfortunately has spread across the nation,” said Bert Brendenburg, Executive Director of Justice at Stake.  This “trend” has had the effect of shifting the focus of judicial elections away from getting the most qualified judges on the bench, to instead being more centered on which candidate is the best campaigner or fundraiser.  The repercussion of which has been a growing perception among the public that judges are politicians first, and impartial interpreters of the law second.  This erases the distinction between judges and officials who serve in the executive and legislative branches.

The 2004 Illinois Supreme Court election is the epitome of how flawed the partisan judicial selection system is and why the transition to a merit selection needs to happen now.  A merit selection system for electing judges ensures that only the most experienced and qualified candidates reach the bench.  It permits judges to carry out their judicial role free from improper influence from popular opinion, private partisan interests, and campaign contributors, and allows them to decide cases based on the facts and the law.

 

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Feb 25 2014

Judges for Sale in North Carolina

Since 2004, more than 80% of judicial candidates in North Carolina have used public financing to fund their campaigns. This program gave a grant to judicial candidates who raised money from small donors and agreed to strict spending limits. However, after nearly a decade on the books, the program was eliminated by North Carolina lawmakers, opening the door for big money to flow into judicial campaigns in the state.

 

Individuals in North Carolina can now contribute up to $5,000 to a judicial candidate, up from $1,000; and without public financing, judicial candidates will rely heavily on big donors, in order to win elections. According to the national institute on money in state politics, 78% of North Carolina’s supreme court elections were monetarily competitive under public financing, as opposed to only 25% prior to it. With the elimination of this program, judicial seats will go to the best fundraiser, rather than the most qualified candidate, which will only undermine public confidence in the judiciary.

 

Big money exacerbates the already problem-laden practice of judicial elections. When judges are forced to court big donors in order to be elected, it puts them in a position they are unaccustomed to, and creates the appearance of impropriety. Further, it is difficult for the public to have faith in an impartial judiciary, when lawyers, law firms, and corporate interests are allowed to buy influence in it. Public financing greatly reduced the impact of big money in North Carolina’s judicial elections, now with it it gone, the state’s upcoming judicial elections may be one example to the nation, of just how much justice really costs.

 

Pennsylvania needs to get its act together and reform our own judicial selection model. The bipartisan judicial merit selection legislation, currently pending in the House, will guard Pennsylvania judges from the insidious effects of big money, and assure Pennsylvanians that our judges are not for sale.

 

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Oct 25 2013

"Smart Talk": Perceived Corruption and Low Participation in Judicial Elections

Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, recently appeared on WITF’s “Smart Talk” radio program to discuss why Pennsylvania should pick judges through merit selection.

At one point in the program, the host, Scott LaMar, asked Marks “what makes a good judge?” Marks responded that good judges have extensive legal knowledge and experience, even temperaments, and reputations for ethical behavior both on and off the bench. Additionally, unlike other public officials, judges are not representatives of the people. Thus, good judges never base their decisions on public opinion like a legislator or a governor would. Instead, they decide cases based upon the facts and the law.

One of the major problems with contested elections is that they are incompatible with the role of judges as impartial arbitrators and “turn judges into politicians,” said Marks. This occurs because judges, particularly at the appellate level, must raise large sums of money to win. Most of this money comes from lawyers and special interest groups who regularly appear in court, and judges are not required to recuse themselves from cases involving individuals that have donated to their campaigns.

“I am not saying that judges are corrupt and are making decisions based on where [their campaign contributions] came from,” said Marks, but “most Pennsylvanians and most Americans believe that campaign contributions affect a way a judge decides cases.”

This is very problematic because the cornerstone of the judiciary is fairness, both real and perceived. If the people believe that judges can be bought, half of that cornerstone is ripped from the foundation of the justice system. Merit selection, however, preserves public confidence in the judiciary by eliminating most of the money from the judicial selection process.

The problems associated with judicial elections are not limited to perceptions of impropriety. Elections also limit the pool of qualified judicial candidates. According to Marks, many qualified lawyers don’t bother running for judicial office because they don’t have the campaign skills, access to money, or connections required to win. This is exemplified by the fact that only one Democrat ran in the last Supreme Court primary race. Under a merit selection system, however, candidates do not have to campaign to get into office. Instead, they apply for a judicial position, and they will be appointed if they are the most qualified candidate.

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Additionally, voter turnout in judicial elections is almost always very low. This may be due, at least in part, to the fact that it is difficult for voters to get the information necessary to make informed decisions, said Marks. Most media outlets refuse to cover judicial races in much detail, if at all, and most campaign advertisements contain little information other than generic recitations that the candidate is “fair-minded” and “tough on crime.”

In contrast, members of a citizens’ nominating commission thoroughly vet the candidates in a merit selection system. Specifically, they review applications, hold interviews and public hearings, read court opinions and other legal documents, and do other things that the general public simply does not have the time or resources to do. The commission then sends a list of nominees to the governor, who then appoints one of them, subject to Senate confirmation. Four years later, the appointee faces the voters in an uncontested retention election. Thus, the people retain the final say over which judges stay and which ones go.

It is also important to understand that merit selection does not amount to “taking away the power of the people to vote for judges” (a common accusation). A constitutional amendment is required to change the way in which judges in Pennsylvania are selected, so the people would be the ones deciding whether they want to embrace merit selection.

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Sep 20 2013

Merit Selection Is Good for Democracy

Recently, former U.S. Supreme Court Justice Sandra Day O’Connor spoke to the National Association of State Legislatures in Atlanta. Justice O’Connor, a longtime supporter of merit selection, argued that the judicial system is becoming dangerously politicized due to certain misconceptions about the judiciary. In particular, she addressed the argument that selecting judges through a merit selection process is “undemocratic.”

Democracy does not require there to be elections merely because it is possible to hold them. If this were the case, nearly every government position, from the Pennsylvania Secretary of Agriculture to the Chairman of the Federal Reserve, would have to be filled by contested elections. Rather, democracy requires there to be elections for bodies that represent the people. Obvious examples would be Congress and state legislatures- elections are required because appointing legislators would insulate and disconnect them from the people they are supposed to be representing.

The judiciary, on the other hand, is not a representative of the people. Justice O’Connor would agree that unlike legislators, judges are not supposed to render decisions based on popular opinion.  Rather, the proper role of judges is to apply the law to the facts in an objective, dispassionate manner, and it is therefore not irrational or undemocratic to insulate judges from the will of the majority. In fact, it is desirable to do so because contested elections can undermine the ability of judges to neutrally apply the law by rendering them beholden to public opinion and special interest money.

Of course, judges need to be accountable in the sense that they should not be on the bench if they are unqualified, corrupt, or unfair. Merit selection takes care of this- judges are nominated by members of a nominating commission and appointed by the governor, and they face uncontested retention elections after each term. Retention elections do not subject judges to the political and monetary pressures of contested elections, yet they allow the people to retain the final say. In addition, the judicial discipline system holds judges accountable for their conduct on and off the bench in order to uphold the integrity of the justice system.

Merit selection isn’t undemocratic – it’s the best way to get money and partisan politics out of our courtrooms.

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Jul 01 2013

Landmark SCOTUS Rulings Give Perspective on Role of Judges

Last week, the United States Supreme Court ruled on three landmark cases: Shelby County v. Holder, Hollingsworth v. Perry, and US v. Windsor. All three of these cases dealt with politically charged topics: the issue in Holder was whether the preclearance requirement of the 1965 Voting Rights Act was constitutional (the court held it was not); Hollingsworth dealt with the issue of standing in a lawsuit over California’s Proposition 8 (the court held that the appellants had no standing); and the issue in Windsor was whether Section 3 of the Defense of Marriage Act was constitutional (the court ruled it was not).

These are all controversial issues that can evoke strong emotional responses. And by and large, the two major political parties do not agree on them. Justices and judges have the difficult job of avoiding the politics and popular opinion surrounding controversial cases and deciding based on the law and the facts before them.

Even though the recent “blockbuster’ cases were on the national level, the job of our state judges is no less difficult or crucial. That is why it is essential that we have the most qualified, fair and impartial judges on the bench.

Several studies have indicated that elections are not the best way to select judges. The reason is straightforward: elected judges need the support of their constituents to get elected. This means that they have to raise money and support from lawyers and litigants who often appear before them in court.

The cost of the average Pennsylvania Supreme Court race approached $3 million in 1995. And in 2009, candidates Joan Orie Melvin and Judge Jack Panella raised a combined $5.4 million. As stated by former Justice Sandra Day O’Connor in her concurring opinion in Republican Party of Minnesota v. White, “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary.”

Judges are guardians of our rights and freedoms and should be selected by their ability to uphold the law and protect the Constitution. Under a merit selection system, judges are chosen based on qualifications rather than fundraising prowess, party affiliation or the luck of a recognizable name. It’s time to give Pennsylvanians the vote on how we select our judges.

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Jun 20 2013

Special Interest Group Money May be Influencing Judicial Decisions

According to a report released by the American Constitution Society (ACS), special interest groups donate a large portion of the funding that judges use to run their election campaigns. For example, business groups contributed $62.6 million to state supreme court justices around the country between 2000 and 2009. This accounted for 30 percent of all contributions, and on average each justice up for re-election received about $62,000 from these groups.

Additionally, the ACS study found that a “significant relationship [exists] between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.” The study revealed that “the more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.” For example, justices who receive half of their campaign contributions from business groups will vote in favor of business interests about two-thirds of the time.

This correlation demonstrates that campaign contributions made by special interest groups may be influencing the decisions of justices. But, as the study makes clear, the ACS was unable to determine whether the justices consciously or subconsciously ruled in favor of business interests because of the contributions or whether justices who are ideologically predisposed to favor business interests attract greater contributions from business groups. In all likelihood, it is a combination of both factors.

But regardless of whether campaign contributions affect judicial decisions, there is a perception that they do. According to a recent poll, about 70 percent of Americans believe that campaign contributions have an influence on judges and justices. And impropriety, whether it is actual or perceived, is damaging to the judicial system.

Fortunately, there is a way to dramatically reduce, if not eliminate, the real and potential influence that campaign contributions have on judicial decisions- by using merit selection. There are no contested elections under the merit selection system, so there is no opportunity for special interest groups to make large campaign contributions to judges or justices.

Uncontested retention elections are used in many merit selection systems, but the ACS study found that campaign contributions in these elections have no statistically significant effect on judicial decisions. Since judges run unopposed in retention elections, they do not have to raise much, if any, money; according to the ACS study, judges in retention elections raise about 40 times less than those facing contested elections.

Click here for the ACA’s report.

Although this study focused on contributions from business interests, PMC is just as concerned about campaign contributions to judges from any special interest.

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May 07 2013

Every end is a new beginning.

Published by under Judges,Merit Selection

It would be premature to say that the sun is peeking through the clouds.

Pennsylvania has had to weather a great deal of shame and uncertainty since the Orie sisters, who should have been stewards and defenders of the law, instead fell under its scrutiny. Pennsylvanians’ faith in their judiciary is understandably at a low ebb. But now that sentencing is complete for former Justice Joan Orie Melvin and her sister Janine Orie, we can stop worrying about what happened, and turn our more sober thoughts to what we’re actually going to do to ensure that it doesn’t have to happen again.

Joan Orie Melvin – now no longer entitled to the ‘Justice’ designation – will spend the next three years under house arrest, and the following two on probation. She will have to pay a fine of $55,000, and, perhaps most humbling, will have to handwrite personal apologies to every judge in the Commonwealth and to every member of her campaign staff and the campaign staff of her sister, incarcerated former state Senator Jane Orie. Photographs of the fallen justice will serve as stationary for these apologies.

The staff of former Senator Orie is included, of course, because much of this matter arose out of the collaborative misuse of state personn

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el and services by the Orie sisters to further Orie Melvin’s campaigns for a seat on the high court. It’s been argued in the past that this is how the game is played, that in politics, it’s never what you can do, it’s who you know. But it should be obvious – and now more than ever, as a hobbled Supreme Court has struggled and continues to struggle to compensate for Orie Melvin’s now permanent absence – that we can’t afford politics when it comes to our judges. They should not have to play a game of power and influence to get elected, and who they know should count for absolutely nothing against their fitness to sit on the bench and weigh the law.

Pennsylvania should have judges that are qualified, unbiased, and meritorious, in all ways that the word has meaning. We should have judges who know the law and apply it fairly, not through lenses handed to them by special interests. We should have judges who rise based on their understanding of legal issues, not on how quickly they can stack cash beneath their feet. And if anything, we deserve to have judges who sign photographs because they are heroes – not because they must apologize for being criminals.

Let’s help give Pennsylvania an opportunity to choose a better path. Let’s put Merit Selection on the table.

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