judgesonmerit.org

Judge Nels Swandal of the Montana District Court has come under fire for a letter he wrote soliciting donations on behalf of Judge Laurie McKinnon. Judge McKinnon who is campaigning for a seat on the Montana Supreme Court, acknowledged receipt of the letter, but declined to comment on its contents. She stated that she did not believe that the letter would jeopardize Judge Swandal’s ability to be fair or impartial.

In the undated letter, Judge Swandal referenced his own failed 2010 campaign for Montana Supreme Court and noted that “money was one of the most difficult aspects of the campaign”.  The letter further stated that he “would be grateful if [donors] could generously give what [they] can”.  The McKinnon campaign has acknowledged that it received, reviewed and forwarded the letter as a fundraising effort.

The Montana Code of Judicial Conduct expressly prohibits “soliciting or collecting money on behalf of a judicial candidate”.  Complaints regarding alleged violations of the Code of Judicial Conduct are brought before the Judicial Standards Commission. Head of the Commission, Susan Parshall stated that she has seen a copy of the letter, but that she cannot disclose whether a complaint has been filed.  If a complaint is filed, the Commission will initiate an investigation to determine whether there has been any wrongdoing and what, if any, disciplinary actions are appropriate. Sanctions range from a private admonition to removing the judge from office.

By continuing to elect judges, we will continue to find ourselves in complicated situations such as this. It’s time to get judges out of the fundraising business, and the best way to accomplish that is through implementation of a merit selection process.

A Philadelphia Inquirer editorial called for the conviction of Senator Jane Orie to spur adoption of proposals for merit-based selection of appellate court judges in Pennsylvania. Senator Orie was convicted on March 26, 2012 on fourteen counts of theft of services, forgery and conflict of interest relating to her use of state-funded legislative staff to support her re-election campaign for state senate.  She was acquitted on an additional ten counts, including all charges related to her alleged use and direction of legislative staff to support the election of her sister, now-justice Joan Orie Melvin of the Pennsylvania Supreme Court. A third sister, Janine Orie, former aide to Justice Orie Melvin, is currently awaiting trial on charges that she directed both the Senator’s legislative staff and the Justice’s superior court staff to do work relating to the campaign of Justice Orie Melvin.

The Inquirer editorial notes that although Justice Orie Melvin has yet to be formally charged with any misconduct, she is reportedly the subject of a grand jury investigation. It further argues that, “The understandable calls for Melvin to step back from hearing cases at least temporarily – or for her suspension under court disciplinary procedures – are unlikely to go away.” The Justice has yet to respond to calls for her to step down. However, she has recused herself from hearing criminal cases in Allegheny County, the location of her sisters’ trials, a move that has come under fire.  As stated in the editorial, “As a probe target, it’s time for Melvin to do what’s best for the high court’s reputation by recusing herself from all cases, due to what the court-reform group Pennsylvanians for Modern Courts has correctly described as ‘the cloud of such a serious investigation.’”

This case has the potential to be much more than just another instance of a disgraced politician and a political scandal. This should serve as a wake-up call to Pennsylvanians and legislators alike. Judicial elections compromise judges and justices by forcing them to raise funds, which creates the impression that “justice is for sale”As the editorial concludes, “It’s hoped that this case will crank up the momentum for proposals supported by Gov. Corbett to get the state’s appellate judges off the campaign trail by switching to a system of merit-based appointments to statewide courts.” We could not agree more.

In response to new legislative attacks on Missouri’s Merit Selection system, the Kansas City Star and Columbia Daily Tribune feature strong pro-Merit Selection commentaries.

The Daily Tribune reminds readers that Missouri sets no limit on campaign contributions, and thus worries that the sponsor of the first resolution “wants to eliminate merit selection of judges and instead adopt a patronage system of judicial selection”. It goes on to question: “Do we want to select judges based on their competence and expertise, or would we rather have judges who can pony up enough political contributions to buy their way into a judgeship?”

The Star’s editorial warns that “a move toward elected judges would be disastrous…Direct elections would result in hundreds of thousands of dollars being spent to influence judges, much of it from out of state and anonymous.”

Both pieces regard Merit Selection as “a proven model” that “has served the state well”. The Daily Tribune further chastises the state legislature’s tendency to “play politics with judicial selection” and worries that “the prospect of a well-funded election-year attack on judges is ominous.”

An editorial in the New York Times entitled “No Way To Choose A Judge” urges Merit Selection as a good solution for Pennsylvania. The editorial recounts recent judicial election news in Alabama and the ongoing investigation into the use of government staff for the elections of State Senator Jane Orie and her sister Supreme Court Justice Joan Orie Melvin. Then the editorial notes:

These seamy doings have helped spark a promising effort by Pennsylvanians for Modern Courts, a nonprofit advocacy group, to persuade the State Legislature to approve a constitutional amendment that would scrap competitive partisan elections. Instead the state would adopt a new system of initial merit appointment and nonpartisan retention elections.

The editorial notes that no system of choosing judges is perfect but opines that Merit Selection “would be a start toward ridding the state’s courtrooms of politics and campaign cash.”

Passing the pending legislation is the first step in a long process of amending the constitution, a process that culminates in a public referendum. We hope the people of Pennsylvania will get the opportunity to decide whether there is a better way to choose appellate court judges.

A piece by the Editorial Board of the Philadelphia Inquirer urges Justice Joan Orie Melvin to step aside during the probe into allegations of illegal campaign practices, which is currently focused on the retrial of her sister, State Senator Joan Orie.

New testimony indicates that Orie and Melvin jointly ordered an aide to remove materials that “might connect the judge-elect to campaign work improperly conducted in Orie’s office,” according to the editorial. A third sister, Janine Orie (who worked in then-Judge Orie Melvin’s chambers), is charged and awaiting retrial. And while Melvin herself has not been charged with anything, it was reported earlier this year that she is the target of a grand jury investigation into whether state workers illegally aided her election bid. She has recused herself from hearing any Allegheny County criminal cases while her sisters face charges, but the editorial suggests that the effort, while proper, doesn’t go far enough. Pennsylvanians for Modern Courts reiterated its earlier call for the justice to step aside until the investigations are resolved, and Pittsburgh law professor John Burkoff now agrees that the Justice’s presence on the court “casts a cloud over all of the court’s deliberations.”

The editorial observes that no matter how Melvin’s case is resolved, the problems with Pennsylvania’s current model of partisan judicial elections have become all too apparent. “Regardless of the trial’s outcome, the allegations of illegal campaign work underscore the problem with electing the state’s most powerful judges in partisan contests that require millions in campaign donations. If nothing else,” the editorial concludes, “the focus on Melvin and her sisters should jump-start a switch to a merit-based system of appointment for the appellate bench.”

In the wake of Thursday’s House Judiciary Committee hearings on Merit Selection for the appellate courts, the Philadelphia Inquirer and Philadelphia Daily News have each published editorials calling for Merit Selection.

Following a recap of the hearing and a brief discourse on local and state-wide judges whose conduct has been the subject of news reports and disciplinary action, the Daily News concludes:

Fixing this broken system will take time, since it would require legislation and a constitutional amendment, which itself requires a referendum.

Still, this has been an idea already debated for years. How many poster children for tainted justice do we need before we get action? That action can start with letting your state lawmaker know it’s time to get campaign money out of the courts.

The Inquirer opines that the proposed legislation would address the “twin problems with the state’s system of electing all of its judges: the corrupting influence of campaigns and fund-raising, and whether voters are adequately equipped to choose qualified candidates for the bench.”

As PMC and PMCAction pointed out during the hearing, passing the legislation will not change the way we select judges. Instead, it puts the issue to the people: changing the constitution requires a public referendum. The legislature can give the people this opportunity by passing the legislation in two successive sessions. We believe it’s time to let the people decide whether there is a better way to select our appellate court judges.

Following today’s Philadelphia Inquirer pro-Merit Selection editorial, is an on-line SAy What Poll asking whether it’s time to change to Merit Selection. (You have to scroll to the bottom of the page). There are four options: two for yes and two for no:

Time to end the election of appellate judges in Pennsylvania?
Yes, civic, legal, business and religious groups favor reform
No, appointed judges aren’t independent, either
Yes, voters have shown they know little about candidates’ qualifications
No, appointing judges means select few get to decide

We hope you will vote YES and choose the reason that best reflects your views! It is time to let the people of Pennsylvania decide whether there is a better way to choose our judges — that is what the pending legislation will do: empower the public to make this decision.

A Public Hearing on Merit Selection  (HB 1815 and 1816) will be held by the PA House Judiciary Committee on Thursday, March 1st from 1:30-3:30 pm, at the National Constitution Center, Kirby Auditorium, 525 Arch Street, Philadelphia.  We know from public polling that Pennsylvanians want the chance to weigh in on the question of how we choose our appellate judges.  This hearing is a critical step in the process that can culminate in the people of Pennsylvania having the opportunity to vote on whether to change how we choose appellate court judges.

Among those expected to attend are:

• Rep. Ron Marsico (R-Lower Paxton), chairman of the House Judiciary Committee
• Rep. Bryan Cutler (R-Peach Bottom)
• Eric A. Tilles, Esq., president of the DELVACCA chapter of the Association of Corporate Counsel
• Kathleen D. Wilkinson, chancellor-elect of the Philadelphia Bar Association
• Representatives from Pennsylvanians for Modern Courts and PMCAction
• K.O. Myers, Director of Research and Programs for the American Judicature Society
• Bishop Mary Floyd Palmer, Pastor, Philadelphia Council of Clergy
• Matthew Berg, Director of State Affairs for Justice at Stake
• Charlotte Glauser, Judicial Specialist with the League of Women Voters of Pennsylvania
• The Honorable Phyllis W. Beck, retired judge
• Walter M. Phillips, Jr., Esquire
• David N. Taylor, Executive Director, Pennsylvania Manufacturers’ Association
• Michael Walker, the Urban League
• Randy Lee, Professor of Law, Widener Law School

Please consider attending. If anyone would like to submit written comments, please contact Michael Fink as soon as possible at mfink@pahousegop.com.  Comments will be accepted until the morning of February 29th and copies will be distributed at the hearing and made part of the record.

The call for judicial reform took to the airwaves this week when former Minnesota Governor Al Quie joined a panel of guests on KFAI-FM Twin Cities Radio to endorse merit selection, retention elections, and performance evaluation panels for Minnesota’s judges. Quie confirmed merit selection’s compatibility with democratic principles by drawing a stark distinction:

 When you vote for either your legislator or the governor you want them biased to your political view. When you pick a judge you want them to be competent, to be respectful of you, and to be trustworthy so that they don’t come at your case in a biased manner.

Quie then lamented that most judges are elected with little or no scrutiny of their qualifications, and reminisced laughingly at his own earliest voting experiences, when he would simply pick any judge’s name on the ballot who appeared to share his Norwegian heritage. The panel proceeded to discuss the impact of political campaigns and fundraising on the public’s faith in the judiciary, concluding that “you want every citizen to be able to go to court with the assumption that you’re going to get a fair hearing…and you’re not going to have to worry about if you participated in a judge’s campaign or not”.

A merit selection constitutional amendment proposal in Minnesota’s legislature currently has the support of a “robust bipartisan coalition”. Quie nonetheless worries that the amendment is getting lost amongst the state’s fierce partisan struggles and has called on the public to contact their representatives and request action, noting that “our big problem is, will the legislature even take this up?” Pennsylvania’s own merit selection constitutional amendment similarly has received broad bipartisan support and will be the subject of a House Judiciary Committee hearing on March 1.  We hope that both Pennsylvanians and Minnesotans will be given the opportunity to ultimately decide what system they want to use to select their judges.

That’s the tag line for one of the candidates in Ohio’s Democratic primary for the chance to challenge incumbent Supreme Court Justice Robert Cupp.  According to the CantonRep.com, both Democrats believe the Ohio Supreme Court has  “a trust problem.”  Candidate William O’Neill, a former appeals court judge, says “‘Money and judges don’t mix,’” and pledges not to accept money from anybody.  His opponent is Fanon Rucker, a Hamilton County Municipal Court Judge.

We think the candidates have tapped into the important public perception that campaign contributions influence judicial decision-making and the accompanying lack of confidence in the courts.  O’Neill’s solution — “no money from nobody” — is an interesting one, and we think there’s a way to apply it across the board.  Get judges out of the fundraising business once and for all.  The way to do that — stop using expensive elections to pick judges, and use Merit Selection, which stops the flow of money to judicial candidates.