judgesonmerit.org

Guest Post by PMC & PMCAction Executive Director Lynn Marks

If you read any post on www.judgesonmerit.org, please read Moving Forwardposted by outgoing PMC & PMCAction Deputy Director  Shira Goodman.  It sums up – in vintage Shira persuasion – the challenges of working for constitutional change.  Regular readers have seen Shira’s posts

since the blog’s inception.   We have been fortunate to have her on our “lean and mean” team.  Shira has been a gift to

the fair courts movement – both in Pennsylvania and nationally.

It is not easy to keep pushing for reform day after day when sometimes it seems elusive.  But if we don’t keep plugging away, only one thing is clear:  meaningful change will never happen.  We invite you to continue reading, to send in posts of your own, and most importantly, please spread the word that Pennsylvanians deserve to have the most fair and impartial courts possible.  We welcome all your suggestions, comments and critiques .  We need  – and want — you on the Reform Team.

Today is my final post as Deputy Director of PMC and PMCAction.  For the last ten years, I have worked with terrific leaders and partners to enable the public to decide whether there is a better way to choose appellate court judges.  I am convinced that Merit Selection is that better way and that, given the opportunity to vote on the question, the people of Pennsylvania would agree. To date, our leaders in Harrisburg have not given the people the right to decide the question.

Change is slow, especially constitutional change. That is appropriate; it should be difficult to amend the constitution.  Change should only occur after dialogue, debate and education, followed by a public referendum.  The trouble here is that those who oppose change fear the dialogue, debate and ultimate vote.

It is easy to do nothing and complain about the rising costs, increasing partisanship and growing divisiveness of judicial elections.  It is easy to sit back and opine that contributions to judicial campaigns must affect judicial decisions without working to change the system.  It is easy to decry the decreasing public  confidence that our courts are places

of fairness and impartiality where all can come for justice. 

What is hard is to act. To work every day to educate, publish the facts, and make a case for change.  This is the hard work that PMC,PMCAction and the Reform Coalition are engaged in.  We are committed to continuing that work until the leaders in Harrisburg give the public the chance to decide for themselves whether there is a better way to choose our appellate court judges.

Although I am leaving PMC and PMCAction, I am not leaving the growing group of Pennsylvanians who want change.  I will continue to support the work of the Reform Coalition, and I look forward to the day when this blog is advertising an upcoming public referendum on amending the

constitution to change the way we choose judges.  That day will come.

An independent judiciary is an integral part of a well-functioning society. The judiciary acts as a check on the powers of both the legislature and the executive. In order to function effectively, judges must be free to decide cases based on the law rather than political considerations or popular will. While judges must be held accountable for their conduct, threatening removal for individual decisions is counterproductive and undermines the ability of judges to do their jobs.

In Pennsylvania, appellate judges are initially elected in partisan elections to ten year terms. After their terms

expire, they may stand for retention in uncontested, nonpartisan elections. Retention elections are an opportunity for the public to vote to retain judges based on their performance over the course of their tenure on the bench. Accordingly, judges are accountable to the voters and continue to serve at the will of the people.

However, retention should not be used as a weapon or threat to bully judges into ruling a certain way on specific cases. Judges are not politicians; they do not have constituencies, nor do they make decisions on individual cases based on political expediency.  Their role is to act as a fair and impartial adjudicator. Threatening non-retention demonstrates a fundamental misunderstanding of the role of the judiciary, undermines the court’s ability to do its job, and does more harm than good.

Additionally, an independent judiciary must be free to make decisions without regard to popular opinion. Judges do not have constituents for a reason; in order to effectively do their jobs, judges have to focus on interpreting the law without regard to whether their decisions would appeal to the masses.

This is not to say that the people are not free to express their

dissatisfaction with the judiciary or individual decisions made by specific judges. However, the appellate process is the correct mechanism to address issues with individual decisions, not campaigning (or threatening to campaign) against retention.

Recently, a Tea Party affiliated PAC issued a press release “warn[ing] that it will organize to defeat Pennsylvania Supreme Court Justice Ron Castille, a Republican, and PA Supreme Court Justice Max Baer, a Democrat, in their respective 2013 retention races, if Voter ID is not implemented in the November, 2012 General Election.” Threats like this from any group undermine the foundation of our judicial system.

Retention is a tool to evaluate the performance of judges over the course of their term, not to bully them into deciding a case in a particular way. This remains true regardless of the group that is threatening non-retention or the subject matter of any particular case.

A column in the Legal Intelligencer by legal ethics expert Samuel C. Stretton argues that “judge-itis” or “black robe disease” undermines the integrity of the judicial system by eroding the mutual trust between lawyers, litigants, and judges.

Stretton defines a judge suffering from judge-itis as one “who thinks he or she is so important that he or she can act unilaterally and arbitrarily”. Symptoms include tardiness in taking the bench, rudeness to lawyers and litigants appearing in front of them, proselytizing from the bench and socializing with members of the bar in such a way as to compromise their judicial integrity.  The cure for this ailment, according to Stretton, is to “elect judges with more experience, wisdom and maturity.”

It is indisputable that misbehaving judges undermine the integrity, efficiency and public trust in the judicial system. However, the answer is not to continue with the current system of judicial elections. Judicial elections can result in the inexperienced candidates (and problematic judges) that Stretton describes because there are no criteria that govern who can run for judge. Merit Selection of judges puts potential judges through an intensive vetting process by a bipartisan nominating commission made up of both attorney and non-attorney members. In addition, Merit Selection also establishes criteria, including years of legal experience, reputation for honesty and integrity, and service to the community, which

applicants must satisfy to be recommended by the nominating commission as part of the list of candidates prepared for the governor.

Merit Selection minimizes the potential for inexperienced judges to get on the bench which reduces the likelihood of judge-itis. Further, Merit Selection limits the influence of special interests on the judicial selection process, making it less likely that a judge will feel either entitled to his judgeship or beholden to her constituents.

As Stretton states, “The best judicial officers are those who struggle every day to be fair and do justice. These men and women recognize their limitations but act with fairness, an interest in learning and humility.” Merit Selection is the best process to ensure that judges are capable of and committed to fulfilling their roles as arbiters of justice.

According to the Philadelphia Daily News, the indictment and suspension of Justice Joan Orie Melvin “puts another big fat bow on the move to have judges appointed on merit rather than elected”.  Justice Orie Melvin was indicted last week on charges that she used her state-funded judicial staff on her 2003 and 2009 campaigns for the Pennsylvania Supreme Court. The charges cast a “dark shadow” over the Court and serve to decrease public confidence in the Pennsylvania judicial system.

The editorial points out that the Pennsylvania judicial system has weathered a number of scandals in the past few years that “have been testament to the dangers of subjecting judges to a partisan political process that requires lots of money to succeed.” Requiring judges to campaign for their seats creates the appearance of impropriety since they must solicit campaign contributions from individuals and organizations that often appear in front of them.

Additionally, as the grand jury presentment regarding Justice Orie Melvin demonstrates, campaigning is a full time job.  “The testimony in this latest grand jury report paints a disheartening picture of a judicial office, not as the sanctuary of justice, fairness and responsibility, but, rather, as a never-ending machine of raising money, campaigning and doing whatever is necessary to stay in office.” Merit Selection would allow judges to focus on their judicial and administrative duties rather than on the requirements of a campaign.

The time is ripe for Merit Selection. We agree with the Daily News that the House Judiciary Committee members should take whatever steps necessary to fast-track the pending legislation and give Pennsylvanians the right to choose whether we change the way we select judges.

An editorial in the LA Times endorsing certain incumbent judges argued that the election of judges is “most definitely different” than other elected officials. Specifically, the editorial acknowledges that the mark of a good jurist is not popularity, but the ability to be fair and impartial in their administration of justice and interpretation of the legal code. Judges cannot be effective unless there is sufficient independence in the system that “they can preside over cases without seeing each big-moneyed litigant as a potential donor or each losing lawyer as a revenge-seeking challenger.”

The Sunday Currents Section of the Philadelphia Inquirer features a letter to the editor (scroll to the bottom) from PMC. The letter responds to last week’s op-ed by Professor Chris Bonneau, which purported to be a critique of Merit Selection but which really only raised questions about retention elections.

PMC pointed out that Merit Selection brings about real results that are desired by the people: “it is beyond dispute that merit selection, by eliminating the need for judicial candidates to raise funds from litigants and lawyers who may come before them, stops the flow of campaign money from those who may later be in the courtroom to the future judges who will decide their cases.”  PMC further explained that the retention elections Prof. Bonneau criticizes are part of Pennsylvania’s current elective system: all Common Pleas and Appellate Court judges are elected for ten year terms and then may stand for retention in uncontested, nonpartisan elections every ten years thereafter until they reach the age of mandatory retirement.

The key point PMC makes is this: “Pennsylvanians. . . deserve the facts about elections and merit selection,” and they deserve the opportunity to vote in a referendum election about whether to change the constitution to implement Merit Selection for the appellate courts. PMC wants the legislature to let the people decide this question, and we want the people to have good information and facts on which to base this decision.

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.

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.