judgesonmerit.org

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.

An editorial in the Pittsburgh Post-Gazette decries the growing problem of money in judicial elections that was reported in The New Politics of Judicial Elections 2009-2010:

Lady Justice is often depicted blindfolded to signify that outside influence does not tip the scales she holds to weigh the truth. Unfortunately, the scales are being tipped by special interests that pour money into judicial elections to get a desired result.

Too often it is the voters themselves who are blind to what is going on, yet this is a national problem and Pennsylvania is affected worse than most.

The editorial discusses the money raised in the 2009 Pennsylvania Supreme Court race between Justice Joan Orie Melvin and Judge Jack Panella, and notes that plaintiffs’ trial lawyers and the state Republican party provided much of the money that funded those campaigns.

The editorial then urges that the solution to the money problem is Merit Selection: “In a merit selection system of the sort proposed but not adopted in Pennsylvania, the corrupting influence of money would not be an issue.”  That’s true, because Merit Selection gets judges out of the fundraising business and stops the flow of money to judicial candidates from people and organizations that later appear before the judges they helped elect.

Merit Selection legislation is pending in the House and Senate.  Passage would set the stage for Pennsylvanians to have the opportunity to decide whether we should find a better way to select appellate court judges.  Without reform, we are left with the alternative described in the closing words of the editorial: a Pennsylvania where “politicians and public alike wear self-imposed blindfolds and pretend only to hear banging gavels, not cash hitting the scales of justice.”

In a letter published in the Philadelphia Inquirer, PMC and Justice At Stake argue that when political parties demand “contributions” from sitting judges for support in retention elections, the whole purpose of retention elections has been undermined.  The letter responds to a report that the Philadelphia Democratic Party has requested $10,000 “contributions” from judges standing for retention in exchange for support on election day.

PMC and Justice At Stake explain that retention elections are yes/no, uncontested and nonpartisan and serve to let the public determine whether a judge should remain on the bench.  PMC and Justice at Stake urge that we are all responsible for returning retention elections to their original purpose: “Lawyers, bar associations, civic groups, and those who care about good government and fair courts — including the media — must ensure that retention elections are what they were intended to be: a referendum on the judge’s performance on the bench, not another political contest.”

The letter closes with this strong statement about why we need reform:  “The [Democratic] party’s greedy ‘request’ is a reminder that judges shouldn’t be elected in the first place.  Judges and money should not mix. Politics should stay out of the courtroom.”

An article in Reuters examines an effort occupying several states: the quest to find a better way to select judges.

The article profiles the ongoing debate in Tennessee over whether to continue its Merit Selection system.  Defenders of the current system, including the legal and business communities, argue that ” judicial elections would lead to expensive campaigns — that they’d be asked to bankroll — and biased judges.”  By contrast, those pressing to change the system are eager to get more conservative Republicans on the bench.

The article also looks to Pennsylvania, recognizing the recent introduction of Merit Selection legislation designed as “an an effort to rein in the role of money and fundraising in judicial elections.”  We hope this effort will be successful and will lead to the opportunity for Pennsylvanians to decide how they want to choose appellate court judges.  (Remember, amending the Constitution to implement Merit Selection requires identical legislation to pass in two successive sessions and then a positive public referendum.)

We know there will be discussion and debate. We just think it’s time to be talking about this critical issue.

The Rome News-Tribune reports that two members of the Georgia Court of Appeals, Judges Stephen Louis A. Dillard and Judge Keith R. Blackwell, will be running for election in 2012. Both judges were appointed by former Governor Sonny Perdue last November. However, the judges clarify that the political party of their appointing governor does not define them as judges. Dillard says, ““The reality is we’re not Republican judges. We’re not Democratic judges. We’re just judges.” Blackwell agrees that partisan affiliations should not, and do not, affect how a judge decides a case. “I can tell you uniformly on our court I am confident that there is not one of the 12 judges who would look at a case and ask how would the Democrats like this case to come out or how would the Republicans like this case to come out in deciding the case,” says Blackwell.

Unlike Pennsylvania, which selects all judges through partisan elections, Georgia selects its judges through nonpartisan elections. While taking the party label off the judicial ballot might help, candidates may still be labeled as “Republican” or “Democrat” by the public, because the public is accustomed to an election system based on party politics. Elections are simply not the appropriate vehicle for judicial selection if we want judges chosen based on ability and not on other factors that have no bearing on how a judge will do his/her job, factors like party affiliation, county of residence, and ballot position. As Dillard says, “Ultimately as a judge your job is a very simple one, it’s not always easy, but it’s to interpret the law. That’s your role.”

The Chaska (MN) Herald today announced a public debate between two state leaders about whether to change the way judges are selected.  State Representatives Mike Beard and State Senator Julianne Ortman, both Republicans, have different views on the subject.  Beard, who favors replacing elections with an appointment and retention election system, argues “Minnesotans take their elections and their judiciary seriously, and they are frustrated with the lack of information available to them so that they can make intelligent and informed decisions.”  Ortman is in favor of maintaining the current electoral process.

In our minds, the important thing is that people in Minnesota are getting the opportunity to hear about the issue and make their own opinions heard.  It’s an important step in the process of deciding whether a state is using the best system to select judges.  We hope the people of Pennsylvania will have the chance to hear their leaders discuss the issue of judicial selection and ultimately decide for themselves whether there is a better way to choose judges.

A recent editorial in West Virgina’s The Charleston Gazette implores the American Bar Association’s House of Delegates to consider model recusal standards at its session in August. West Virginia has been at the center of conversations about recusal reform since 2009’s Caperton v. Massey. After a trial decision in favor of Caperton, Massey contributed $3 million to a judicial race that ultimately elected Justice Brent Benjamin to the West Virginia Supreme Court. The Caperton case stirred public skepticism of the court when the case came before the West Virginia Supreme Court and Justice Benjamin refused to recuse himself; the Court then ruled in favor of Massey, twice. Caperton appealed to the US Supreme Court arguing that Massey’s significant financial contributions during the 2004 judicial election was cause for Justice Benjamin’s recusal. The Supreme Court agreed, affirming the need for respect for, and impartiality of, the courts: “We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

According to the Brennan Center for Justice at NYU Law School, “Judicial election spending has spiraled out of control in the past decade, with high court candidates raising $206.9 million in 2000-2009, more than double the $83.3 million raised in the 1990s.” While clearer recusal standards will help to avoid corrupt results and hopefully regain the trust of the public, they do not address the root of the problem – that judicial elections, and their reliance on campaign contributions, create a climate of distrust. When candidates must raise money to run for the bench, elected judges may feel indebted to their contributors, and their decisions may affect the availability of future campaign funds. Furthermore, when the public watches a judge, who benefited from campaign contributions, rule in favor of that donor, trust is eroded regardless of the merits of the decision.  A June 15th New York Times editorial asked “Can Justice Be Bought?” Stricter recusal standards offer only part of the answer. Moving away from judicial elections and instead supporting a system that prioritizes a judge’s ability to analyze the law over his or her ability to raise money provides a more workable solution.

In response to recent criticism that financial support from George Soros is an attempt to “stack the courts,” Executive Director Lynn Marks affirmed the virtue of merit selection in an interview with FoxNews.com. “Merit selection would end the money race and get judges out of the fundraising business.” Marks further critiqued judicial elections’ emphasis on political connections saying that potentially qualified candidates “don’t put their name in for nominations because they think they don’t have the political connections or access to dollars.” Politics play an especially significant role in Pennsylvania’s judicial elections in which candidates identify with either the Democratic or Republican Party and must raise huge amounts of money to win their races.

Marks highlighted the need for merit selection for appellate courts explaining, “judges should resolve disputes based on evidence – they’re not supposed to be responsive to public pressure.” Contrary to assertions that appointment of judges through merit selection is undemocratic, merit selection actually requires that the public support it. As Marks said, “Merit selection requires a change in the Constitution, so a bill must… go before the public. So when people say, ‘oh, you’re changing the way we vote’ — yes, but only if the people want to change the way we vote.”