judgesonmerit.org

We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom.  Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts.  A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”

The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.  “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.”"  The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign.  Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to that judge by the attorney or their firm within the past five years. The judge would then have to recuse  from the case if a motion to do so was filed by any party to the case who did not make a contribution.

The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.”  The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary.  But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process.  That way is Merit Selection.

The Pittsburgh Post-Gazette reports that controversy is brewing about Supreme Court Justice Max Baer’s comments about the Supreme Court’s forthcoming opinion in the redistricting case.  The Court issued an order in the case late Wednesday, but the opinion is not expected until some time next week.  Justice Baer made comments to the press about what he anticipated would be included in the opinion and also opined that due to timing constraints, it was likely that the 2001 districting maps would control the upcoming election. The State Republican Party has issued a statement criticizing Justice Baer for commenting on the case in advance of the opinion being issued and charging that he has violated the Code of Judicial Conduct, which prohibits judges from speaking out on pending cases.

This incident raises the issue of whether judges should communicate about their decisions outside of their written opinions.  We believe judges should let their opinions speak for them.  Judges and courts write opinions for the very purpose of explaining their decisions; this provides clarity and equal access to the decision and the reasoning underlying it.  The opinion should be the only way judges speak to the public about their decisions.

Both North Carolina and Alabama are looking to Merit Selection as a means of ensuring that judges are selected based on qualifications, not money or partisanship.

North Carolina pioneered publicly-funded judicial elections but fears for the future of that system after the US Supreme Court struck down Arizona’s similar “matching funds” public financing scheme.  The News and Observer argued that the state should avoid politically-charged judicial elections of other states where “judicial offices were seen to be for sale to the highest bidder, who was almost certain to be an interest group buying favorable judgments for its members.” A new plan, proposed by the state’s Bar Association, is based on confirmation and retention elections whereby the state’s voters would decide on judges nominated by the governor based on the advice of a diverse panel.

This proposal is not simple and it is not ideal, but there is no ideal way to choose our judges, and the Bar’s proposal is clearly better than any of the alternatives. . . [O]ur legislators need to give serious attention to the complex problem of judicial elections and to the Bar Association’s proposal for addressing it.

Alabama was the home of the nation’s most expensive state supreme court elections from 2000-09.  The Dothan Eagle reported that in this year’s election, voters will have almost no choice as all but one of the state’s incumbent Supreme Court justices and all of its appellate court judges are running unopposed.  As the Eagle explained:

Alabama’s judicial races have become extraordinarily contentious and, by extension, have grown to become the most expensive judicial races in the country.  If the depth of the acrimony in the campaigns doesn’t raise questions about how blind justice might be with any of the candidates on the bench, then the process itself should. A contest that requires judicial candidates to claim allegiance to a political party and all its philosophical baggage to seek an office that requires objectivity is flawed from the start.  Alabamians should insist that positions on the state courts be treated as judicial appointments instead of political offices.

We hope that the citizens of Alabama, North Carolina, and Pennsylvania will get the opportunity to choose a better way to select judges.

(Hat-tip to Gavel Grab)

In an editorial today, the Philadelphia Inquirer urges the legislature to act on pending Merit Selection legislation.  Although the paper has supported Merit Selection for a long time, the impetus for the call today was the pending investigation of Pennsylvania Supreme Court Justice Joan Orie Melvin for improper use of her judicial staff for her judicial election campaigns.  The editorial first echoes PMC’s calls for Justice Orie Melvin to temporarily step down from her duties on the Court.   The editorial then explains:

The allegations alone ought to be enough to shake the public’s faith in the state’s system of electing its most powerful judges.

No matter what the outcome of the inquiry into the Orie sisters, the state judiciary would not have to weather such controversy if its top judges were chosen through a merit-based system of appointment, with voters’ concurrence through nonpartisan retention elections. . . .

With the Melvin controversy bringing renewed attention to Pennsylvania’s discredited system of electing judges, Harrisburg officials should seize the moment and move ahead on judicial reform.

We agree, and we hope the people of Pennsylvania will be given the chance to decide for themselves whether there is a better way to select appellate court judges.

The courts have become a football in Wisconsin’s ongoing political fights.  Wisconsin’s judges, like those in Pennsylvania, are elected, and judicial elections have become markedly more contentious since Wisconsin Gov. Scott Walker’s row with the state’s labor unions last year.  The Wisconsin State Journal has called for merit selection stating:

 Wisconsin’s broken system for selecting members to its highest court favors partisanship and political connections when justices are appointed by governors — with zero oversight — to fill vacancies. And when elections actually do occur, Wisconsin’s system for selecting its top judges favors campaign skills and special interest backing.  Lost in the process is the need for experience, independence and impartiality.

The State Journal called for a system of merit selection that relies on a citizens nominating commission to screen candidates for potential appointment by the governor.:

Many liberal and conservative activists would rather continue to fight for control of the court in expensive, mud-slinging elections. But Wisconsin deserves and needs a high court with honor, one that doesn’t favor either political party, one that makes decisions based on the law regardless of the political fallout.

Merit selection is the best answer to Wisconsin’s embarrassing and dysfunctional state Supreme Court.

A poll conducted by Justice at Stake has shown that recent judicial politicking and conflict has reduced Wisconsinites’ faith in their Supreme Court from 52% three years ago to 33% today.  This highlights the dangers of judicial elections.  Whether such elections actually produce more corruption, the public’s faith in the judicial system is undermined by the perception of favoritism resulting from candidates’ fundraising and political ties.

There has been extensive news coverage of the revelation that Supreme Court Justice Joan Orie Melvin is the target of an on-going grand jury investigation about the use of government staff for election activities.  In the wake of those revelations, PMC called on the Justice to temporarily step aside from her judicial duties; PMC also urged the state Supreme Court to temporarily suspend Justice Orie Melvin if she failed to voluntarily step aside. PMC has been cited in numerous articles throughout the Commonwealth and by local radio stations.

Deputy Director Shira Goodman was quoted in The Legal Intelligencer regarding the target letter Justice Melvin received from the grand jury: “That was kind of the line for us. . . [The target letter] moved this from the realm of ‘this is kind of a sticky situation’ to ‘this is really much more serious and could undermine her ability to serve.’” Both the Pittsburgh Tribune-Review and Post-Gazette quoted PMC Executive Director Lynn Marks who stated that: “All citizens, including judges are presumed innocent until proven guilty, but judges and especially supreme court justices should not be permitted to judge others while under the cloud of such a serious investigation.”

Philadelphia Public Radio WHYY News Works also quoted Goodman in regards to Justice Melvin’s recusal from hearing cases involving the Allegheny County prosecutor who argued the previous criminal cases against her sisters: “We don’t think it’s enough. . . I think she would still be weighing in on very important questions that affect all Pennsylvanians from family matters to business questions to possibly the redistricting case and we don’t need a cloud. We don’t need questions about whether a judge. . . legitimately should be there or not.”

On Thursday, the Pittsburgh Post-Gazette echoed PMC’s call for Justice Melvin to take a leave of absence or face suspension:

Justice Melvin simply cannot go on as if this is business as usual. While her own presumption of innocence has not changed, her continuing presence on the high court does no service to the people of Pennsylvania or the venerable institution whose reputation she is supposed to uphold. Justice Melvin has already conceded half the point by recusing herself from cases involving the Allegheny County district attorney’s office. She must go further and take a leave of absence until this black cloud is cleared. If she won’t go voluntarily while the grand jury tries to connect the all-too-prominent dots of this case, Chief Justice Ronald D. Castille should use his power to convene a four-member majority of the court to suspend her.

Harrisburg Public Radio WITF also spoke to Goodman who outlined the problems with the judicial selection process in Pennsylvania: “We have a system that treats judges like politicians. They have to get party endorsements, they have to raise money, they have to curry favor with special interest groups to be able to run and succeed in a 67 county state.”  Goodman went on to explain that the grand jury investigation demonstrates why elections are not the right way to choose our appellate judges.

Pennsylvanians for Modern Courts today called for swift action following the Pittsburgh Tribune-Review‘s report that Supreme Court Justice Joan Orie Melvin is the target of a grand jury investigation focused on the improper use of judicial and legislative staff for her election campaigns. PMC has called for Justice Orie Melvin to temporarily step down or face suspension by the Supreme Court.  AS PMC Executive Director Lynn A. Marks explained, “All citizens, including judges are presumed innocent until proven guilty, but judges and especially Supreme Court justices should not be permitted to judge others while under the cloud of such a serious investigation.”

PMC also called on the Legislature to amend the state constitution to end election of appellate judges in Pennsylvania.  As PMC Deputy Director Shira J. Goodman explained:

 Judicial elections require candidates to campaign, politick, and fundraise, eliminating the distinction between them and politicians. Judicial elections are designed to pick the best campaigners and fundraisers. We need a system that is designed to get the most qualified, fair and impartial judges on the bench. . . . PMC calls on the legislature to. . .  give the people of Pennsylvania the opportunity to decide whether there is a better way to select appellate judges.

The local news media is increasingly focused on and frustrated by the situation in Philadelphia’s Traffic Court.  An Inquirer editorial attacked the current system of electing judges stating that:

Philadelphia Traffic Court has provided proof, once again, that the city Democratic Party is immune to the toxic fumes emitted by the clunker candidates it chooses to run for judgeships year after year.  How else can you explain that one newly elected judge, whose only qualification seems to be that she is the 53rd Ward’s leader, couldn’t even pass the judge’s test?

Meanwhile, the Daily News today described the Traffic Court as a “joke” in reference to Judge Willie Singletary’s repeated indiscretions and Judge Michael Sullivan’s removal from his position as Administrative Judge following FBI raids to his home and office.  The editorial pointed to the current system of selecting judges through elections as the primary problem:

Traffic Court and the magisterial district courts are the only two in the state that don’t require its judges to have legal background, otherwise known as ‘actual judicial qualifications.’ It’s simply an elected office and all that implies -meaning the political machine is ultimately in charge of dispensing justice. The fact that winners of this elected office are allowed to call themselves ‘judges’ is a pretty gross miscarriage of what we should expect from justice.  It also adds plenty of fuel to the movement to end the election of judges.

Philadelphia’s Traffic Court, already suffering from bad press due to allegations that Judge Willie Singletary displayed a picture of his genitals to a court employee, experienced a new setback this week. Newly-elected Judge Christine Solomon failed the required examination for Traffic Court and Magisterial District Court judges and was not able to take the oath of office along with other new judges.

Currently, Traffic Court judge elections are based on politics, not competence. To qualify, candidates must be 21 years old and a Philadelphia resident for at least one year. They need no formal legal training but non-attorney judges must complete a one-month preparatory course covering traffic laws and court procedure and pass a two-hour essay and multiple choice test before taking the bench (Judicial Code (42 Pa C.S.A. §3112)). Solomon, a ward leader, benefited from winning the first ballot position and strong support from the party leadership during the primary. In Philadelphia, that was all she needed to win a six-year tenure as a Traffic Court judge along with its $89,000 salary. A retest will be offered on January 31st.

This incident demonstrates that judicial elections are not designed to put the most qualified judges on the bench. There must be a better way.

An editorial in the Philadelphia Inquirer uses the case of a Philadelphia Traffic Court as evidence of the problems inherent in electing judges.  Traffic Court Judge Willie Singletary is in trouble, and as the editorial points out, it’s not the first time.

Judge Singletary, who was already sentenced to a reprimand and probation by the Court of Judicial Discipline for violations during his campaign that included direct solicitation of contributions and seeming to promise favorable outcomes in exchange for donations, has now been escorted out of of Traffic Court following allegations that he showed naked pictures of himself to a City employee doing work related to Traffic Court.   And, before he was elected to Traffic Court, Singletary had amassed huge traffic fines ($11,500) and had his driver’s license suspended.  This history prompted the following observation by the Inquirer:

Beyond suggesting an ability to empathize with the plight of drivers in similar straits, Singletary’s resumé hardly stands as an endorsement for Pennsylvania’s system of electing judges. It’s also a condemnation of the vetting process of the city’s dominant Democratic Party, to which many judicial candidates must pay fealty – and a hefty donation – for its help on Election Day.

We’ve long known that judicial elections reward fundraising prowess, campaign skill, and other attributes that are unrelated to one’s ability to serve as a judge.  Pennsylvanians deserve a system of choosing judges that is designed to get the most qualified, fair and impartial judges on the bench.  Judicial elections are not the way.