judgesonmerit.org

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.”

In a May 26th opinion piece published in the Washington Post, Professor Chris Bonneau makes the argument that elections are the best way to select judges. In the course of dismissing the evidence that judicial elections undermine public confidence in the impartiality and integrity of the judiciary, Bonneau makes an argument that we’ve seen repeated over and over again. He claims that partisan judicial elections are more transparent than Merit Selection.

On its face, this seems likes a logical argument. Voters line up on election day, and choose the person they want to be their judge. But is the election process really as open or transparent as Bonneau claims?

In Pennsylvania, partisan elections mean a primary vote, to decide which candidate will represent each party in the general election. It’s relatively rare for a judicial candidate at any level to win a primary election without the endorsement of a political party. The party endorsement conveys an automatic advantage, both in terms of fundraising and political capital.

The thing is, political parties aren’t required to disclose anything about how or why they choose the candidates they endorse. As we pointed out at the beginning of this year’s judicial primary race, these huge swaths of the partisan, political election system are completely opaque to voters. The public gets little, if any insight into the process. The only safe assumption is that the stated goals of the candidate (who’s running for a position that requires impartiality and independence) match up with the political positions of the party. The other thing that the process reveals about a judicial candidate who’s endorsed by a party is that the party believes the candidate has the campaign savvy and fundraising prowess necessary to get elected.

In this year’s Democratic primary for a seat on the Superior Court, Common Pleas Judge David Wecht ran unopposed. Voters didn’t even have the option of choosing an unendorsed candidate. We’ll never know if other qualified candidates were dissuaded from running simply because Judge Wecht received the endorsement.

By contrast, the Merit Selection proposal that we support, to reform selection of appellate judges in Pennsylvania, would include measures specifically designed to make it as transparent as possible. The process for choosing appellate judges would be written into state law, including publication of the qualifications of candidates for each seat on the bench, and opportunities for public input before the Nominating Commission makes its recommendations to the Governor. In addition, we support a Nominating Commission that would include representatives from public, community, labor and business groups, who would be able to take the perspective of their members into account when making their recommendations.

Under Merit Selection, judicial candidates reach the bench based on a careful examination of their qualifications, experience and knowledge of the law. By contrast, elected judges often can’t even make it onto the ballot without satisfying the opaque interests of a political committee. So why are judicial elections touted as an unassailable model of transparency and openness?

In Miamisburg, Ohio, the race to replace retiring municipal Judge Robert Messham is getting ugly. Partisan bickering and accusations of misconduct are making headlines. The twist? The candidates are both on the same side, at least politically. Candidates Robert Rettich and John Kolberg are locked in an increasingly messy squabble over the Republican nomination. The Dayton Daily News explains the situation:

Kolberg, who has served as magistrate at the court for 19 years and as an acting judge since 2002, was recommended over Rettich by the Montgomery County Republican Party Screening Committee in January.

But on April 14, the precinct captains in the court’s jurisdiction voted 23-4 to endorse Rettich.

Former Miami Twp. Trustee Dave Coffey, who is helping Kolberg’s campaign, said the April meeting was an “ambush.” Instead of focusing on judicial qualifications, Rettich supporters questioned Kolberg’s legitimacy as a Republican, Coffey said.

In addition to the political infighting, there are allegations that a Rettich supporter tried to get the retiring judge to convince Kolberg to withdraw, by threatening the jobs of current court employees.

Messham told the Dayton Daily News that Miami Twp. Trustee Deborah Preston told him April 16 that if Kolberg did not withdraw from the race, Rettich would fire all current court employees once he is elected.

Preston also told Messham that, if he brokered the deal to get Kolberg out of the race, he would be allowed to serve as a visiting judge at the Miamisburg court after he retires, Messham said.

Messharm said Preston never mentioned Rettich’s name, but said, “Bob, I’m only the messenger.”

Why is the endorsement of the County Republican Party causing such a scrap? Because of cold political reality; without a party endorsement, most judicial candidates in partisan races have a vanishingly small chance of reaching the bench. Endorsed candidates have a huge advantage in a party primary. If a candidate who fails to win a primary even has the option to run as an independent, he or she will be facing opponents who have the benefit of their parties’ assistance with campaigning and raising funds.

In a partisan judicial election, the endorsement of a party is invaluable. Party politics become more important than the experience and ability of the candidates. Qualified judges can reach the bench only if they’re also sufficiently skilled politicians. They must navigate the often contentious currents of party endorsements, and the often confusing ethical rules that try to balance the need for political campaigning against their impartiality on issues they might rule on once they’re elected.

We believe that Pennsylvanians deserve a system that gets appellate judges out of the business of raising funds and campaigning for votes. We think that skilled judges should be able to reach the Pennsylvania appellate bench on the strength of their experience, their ability, and their knowledge of the law, not their skill at winning political points. That’s why we support the switch to Merit Selection of appellate judges in Pennsylvania.

Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, went before a special committee of the Pennsylvania Bar Association on Wednesday, to make the case for reforming judicial selection in Pennsylvania.

The PBA is studying the possibility of recommending a Constitutional Convention, which would rewrite the Commonwealth’s founding document. The Constitutional Review Commission has been accepting testimony about what parts of the constitution should should be modified if a convention is called. Marks told the committee that PMC doesn’t have a position on whether or not a convention should occur. If a convention is called, however, PMC believes it should include changing the selection of appellate judges from partisan elections to a Merit Selection system.

Marks’ testimony was reported in the Wilkes-Barre Times Leader:

[T]he current, partisan process of electing appellate court judges is fraught with problems that have undermined the public’s confidence in the judiciary.

Among the most pressing concerns involves the huge amount of money statewide judicial candidates must raise to fund their campaigns – money that primarily comes from attorneys and special interest groups that have led the public to believe that “justice is for sale.”

“When judges preside over cases involving lawyers or parties that contributed financially to their campaign . . .. the public cannot help but be concerned that a judge’s impartiality might be affected,” [Marks] said.

The judicial system in Pennsylvania is organized by Article V of the state constitution. In addition to changing the selection system for appellate judges, Marks recommended changes that would improve the judicial discipline system, and ensure adequate funding for the courts. A .pdf copy of Marks’ testimony is available from the Commission’s website. Video of the hearing will air on PCN at 5 pm on Saturday, April 30th.

An op-ed in the New York Times by Dean Erwin Chemerinsky and Professor James Sample points out the problems inherent in electing judges, focusing especially on the money problem.

Chemerinsky and Sample conclude that the most viable solution to the problem is to recognize that because judges are different, judicial elections should be different.  They urge that states impose, and the Supreme Court approve, limits on campaign contributions and spending in judicial elections (even if such limits remain unconstitutional in other elections).

We agree that judges are different and should be selected differently than other officials.  But we remain committed to wholesale change — the elimination of judicial elections (at least at the appellate level).

We are not alone in this commitment, as is evident from a letter to the editor from New York attorney Norman Greene: “Eliminating all judicial elections — and replacing them with well-designed appointment systems as are in effect in a number of courts in New York and other states — is . . . the means most likely to achieve overall judicial reform.”

Finding a better way to select judges represents the best way to solve the money problem.  But it also solves other problems inherent in elections — problems like the lack of relevant information for voters seeking to make informed decisions; the focus on political savvy and fundraising skills as opposed to qualifications to serve; the random factors like ballot position and name recognition that disproportionately affect election results; and the lack of diversity on our appellate courts.

To us, there is a common solution to these problems: Merit Selection of appellate court judges.  PMC and PMCAction will continue to work for such reform in Pennsylvania.

On Monday, 3/28, the Supreme Court is scheduled to hear oral arguments in McComish v. Bennett, a case that challenges a portion of Arizona’s Citizens Clean Elections Act. The ruling could have serious consequences for states that use public financing to allow elected judges to run for the bench without having to raise campaign funds.

The challenged part of the law allows a publicly financed candidate, facing an opponent spending private funds, to receive an extra infusion of public money if their opponent’s spending goes over a certain amount. This “trigger provision” ensures that publicly financed candidates won’t be at a disadvantage, limited to a certain level of spending, while their privately financed opponents are free to spend as much cash as they can raise.

At issue is whether or not the provisions represent a limitation on the rights of candidates who choose not to accept public financing. According to our partners at the Justice at Stake Campaign:

[a] federal judge declared the Arizona provision unconstitutional, saying it violated the First Amendment because it caused candidates without public funding to limit their campaigning, fundraising and spending of campaign money. The Ninth U.S. Circuit Court of Appeals disagreed, saying the provision imposed “only a minimal burden on FirstAmendment rights,” that there was no evidence of it chilling free speech rights, and that it was needed to fight a perception of corruption.

Four states – North Carolina, New Mexico, Wisconsin and West Virginia – have turned to public financing plans, to help alleviate the need for campaign fundraising by appellate judge candidates. A ruling against the Citizens Clean Elections Act would likely invalidate similar trigger provisions contained in all four of those plans. Candidates who opt into public financing in future judicial elections will be forced to limit their spending, while candidates who choose to raise their own funds will be free to spend as much as they can amass. How many aspiring appellate judges will choose public financing, knowing that they won’t be able to respond if their opponents outspend them?

While we respect any attempt to mitigate the influence of campaign spending on the outcome of judicial elections, we think that a better solution is to completely eliminate campaign financing as part of the process. Let appellate judges reach the bench based on their experience, skills and qualifications, not on the back of a huge campaign war chest. That’s why we support Merit Selection for appellate judges in Pennsylvania.

Despite their ostensibly nonpartisan structure, recent elections for the Wisconsin Supreme Court have proven as bitter and heated as any political contest in memory. When then-Justice Louis Butler ran for re-election in 2008, he was defeated by challenger Michael Gableman, who led a multi-million dollar smear campaign that distorted Butler’s record.

This year’s contest, which sees self-described conservative Justice David Prosser up for re-election, is expected to be just as contentious. Wisconsin’s labor unions are making plans to oust Justice Prosser, as part of a planned push back against the recent passage of a bill stripping public unions of their collective bargaining rights.

Prosser’s opponent, former prosecutor JoAnne Kloppenburg, has received praise for her politically independent stance. Unfortunately, the intentions of the candidate often mean very little when races can be influenced by political party and interest group spending that’s completely out of their control. In the 2008 race, outside groups out-spent the candidates by almost 11 to 1, a margin which even alarmed the candidates themselves.

No matter how apolitical Kloppenburg remains, the unfolding narrative of the election is already becoming clear. The unions and the political left are promoting Kloppenburg as a weapon against the policies of Governor Scott Walker and the Republican-controlled state legislature. The pretense of nonpartisan elections has never been less accurate. Whatever your political views, the judiciary is diminished whenever a judicial contest is decided not on the qualifications and ability of the judges in question, but by political expedience and campaign spending.

If a recent hearing is any indication, the Nevada Supreme Court is about to allow the state’s judges and judicial candidates to “take the gloves off” when campaigning for a seat on the bench. According to the Las Vegas Review-Journal, “[j]ustices seemed to favor lifting the restrictions, which prohibit judicial candidates both in what they can say in a campaign and how and when they raise money.” The comments came at a public hearing held Thursday, that could determine the future of the court’s Standing Commission on Judicial Ethics and Election Practices.

Recent rulings by the U.S. Supreme Court have raised the issue of whether Nevada’s restrictions on judicial campaigning and fundraising infringe on First Amendment free-speech protections. The Nevada Supreme Court is deciding whether or not to overhaul the commission, which uses those rules to resole campaign disputes, and advise sitting judges who inquire about ethical issues.

The voters in Nevada recently rejected a proposal to eliminate judicial elections in favor of a Merit Selection system. Now, they’ll likely be faced with increasingly partisan judicial campaign rhetoric, and judges whose political savvy and fundraising skills are their most important qualifications for the bench. We hope that we can provide the voters of Pennsylvania with the opportunity to make a different choice.

In an op-ed in today’s Philadelphia Inquirer, PMC’s Lynn Marks and Shira Goodman argue that in the wake of the Luzerne County scandal, there remains a fundamental question for Pennsylvania to answer:

What does it mean to be a judge?The answer should be simple: A judge is a public servant sworn to render judgment in legal cases without regard to self-interest, personal bias, public opinion, or political pressure.

Lately, this fundamental proposition has been overshadowed. But we must demand that it be followed by all Pennsylvania justices and judges, and any judicial behavior falling short of it must not be tolerated.

Marks and Goodman argue that distinctions between what is criminal and what is unethical hold little meaning when it comes to judges, because unethical judicial behavior has the potential to be as harmful as criminal behavior.  They further explain that something has been missing in the aftermath of the scandal, something that may seem obvious, but that needs saying:

There should be an unequivocal official statement that what the former judges did was an example of judicial misconduct of the highest order. It should be made clear to all Pennsylvanians that these men violated almost every rule governing the behavior of the state’s judges.

The authors follow this with a list of ethical constraints on judicial behavior in an effort to restate some basic truths about what Pennsylvanians should be able to expect of their judges.  The op-ed closes with a strong statement about the judicial role:

At its core, kids-for-cash was about judges ignoring who they worked for: the people. These judges abused the power with which the public entrusted them, using it to enrich themselves and their friends.

This is the polar opposite of what it means to be a judge. It must never be allowed to happen again.