judgesonmerit.org

Yesterday, I had the fortune of hearing three ex-governors of Pennsylvania get together on a single phone call with the media to discuss merit selection in Pennsylvania. These are three people from across the political spectrum who sometimes have difficulty agreeing upon which end of a dog barks; but on the subject of how we might improve our system of choosing judges, they spoke passionately and with a united perspective.

They – former Governors Edward Rendell, Dick Thornburgh, Thomas Ridge – spent a half hour answering questions and giving their opinions on the current Merit Selection bills in the Pennsylvania Assembly, why our state would benefit from Merit Selection, and how their own time in office only reinforced that perspective. This event followed a letter to legislators and Governor Corbett exhorting them to action on merit selection, signed by these three former governors and a fourth, former Governor George Leader.

The union of these former leaders of Pennsylvania show that how are judges are selected is not an issue defined by party lines or political ties – indeed, the eradication of political allegiance from the judicial selection process is one of benefits that proponents of Merit Selection hope will manifest. Governor Ridge emphasized that the ideal judiciary is supposed to be independent of political machinery. It is the branch of government that is given direction not by the changing flavor of public opinion, but

by the structures of law already established.

These four governors have all had first hand experience with how electioneering and campaigning casts a shadow over that independence, even when they themselves were forced to be participants of that system. They said they knew while in office that there was a better way to ensure the quality of Pennsylvania’s judiciary; and even now, long after they have all vacated the Pennsylvania’s Governor’s Mansion, they are working to give Pennsylvanians the opportunity to choose for themselves whether they agree.

Four former Pennsylvania governors have come together to advocate for merit selection. Republicans Dick Thornburgh and Tom Ridge, and Democrats Ed Rendell and George Leader sent a letter to legislators and Governor Corbett last week asking lawmakers to move merit selection forward.

A spokeswoman for Governor Corbett has indicated that he is in support of merit selection.

The Philadelphia Inquirer highlighted this rare show of bipartisan cooperation. According to Lynn A. Marks, executive director of PMC, the governors’ bipartisan support is significant. said their coming together is significant and “highly unusual.”

Pennsylvania is one of only six states that elect all judges in partisan judicial elections. Although, as Marks notes, replacing an elective process with a hybrid elective-appointive process sounds counterintuitive, “Judges … are supposed to make decisions in individual cases based solely on the facts and the law,” which is unique among other elected officials.

A spokesman for Governor Corbett said that he supports merit selection. There

is also some support among legislators, according to Bill Patton, spokesman for the House Democratic Caucus.

The letter sent to policymakers expressed understanding that the choice to change the way judges are selected should not be taken lightly. “Like all constitutional amendments, it is a topic worthy of extensive discussion and debate. We simply ask that you act to begin that process.”

PMC is hopeful that renewed support from the former governors along with the current statewide focus on judicial ethics in light of Justice Joan Orie Melvin’s conviction for campaign corruption, will jumpstart the process to finally achieve merit selection of judges in Pennsylvania.

According to a recent article in the Daily Princetonian, a new study finds that judges selected through a merit selection process are more effective than their elected peers.  The study shows that judges chosen through merit selection are more effective on the bench, as they possess higher quality of information about the cases that come before them, make fewer mistakes regarding the law by which the case is to be judged, and are more open to altering their views according to new information provided to them on a case by case basis.

Researchers reviewed nearly 6000 state supreme court rulings in criminal cases in order to study the trade-offs involved in choosing between appointed officials and elected officials.  The research gives us a unique glimpse into the ultimate effectiveness of judges chosen through merit selection when compared to their elected counterparts.  As one author of the study commented, “[elected] judges are not necessarily the great legal minds, they’re the great political minds, the ones that can get elected in a popular election.”  Because of the constant attachment to the electorate, the researchers note that elected judges often pander to the public through their

rulings.

We could continue to choose statewide judges through partisan political elections, but by doing so, we face the potential for continued campaign corruption and the disturbing fate of having less effective judges.  On the other hand, Pennsylvanians can choose to implement merit selection, thereby removing the hazards of campaigning while also ensuring ourselves that the most qualified candidates for the bench are hearing our cases.

An article in the Legal Intelligencer discusses a recent case in the U.S. Court of Appeals for the Third Circuit, in which the court ruled that election contributions not disclosed by an arbitrator were not sufficient to prove bias.

The allegations of bias were raised against arbitrator Maureen Lally-Green, who had formerly been a judge on the Pennsylvania Superior Court. Lally-Green did not disclose that she had received $4,500 from a corporation closely related to the defendant, or that she had taught a seminar with one of the defendant’s attorneys.

The court held that the relationships were not strongly suggestive of bias. Judge D. Brooks Smith referenced the Federal Arbitration Act in

his opinion: “The word ‘evident’ suggests that the statute requires more than a vague appearance of bias… cheap viagra Rather, the arbitrator’s bias must be sufficiently obvious that a reasonable person would easily recognize it.”

The judge contrasted that with the judicial standard, which requires recusal if impartiality “might reasonably be questioned.”

The court noted that while Lally-Green did not in fact disclose the campaign contributions, they were nonetheless a matter of public record. The court also emphasized that Lally-Green received a “fivefold contribution” from the law firm representing the plaintiff.

In addition, Lally-Smith had been selected by both parties for her expertise in the matter. The court determined that “a reasonable person would not know which side Lally-Green might be likely to favor.”

A contribution to a campaign should not, in fact, be enough to prove bias. It is evidence of an association only, and legally, shouldn’t alone be sufficient to be damning. As the article says, arbitrators tend to be held to a lower standard than judges, and there are indications that Lally-Green could have been biased towards either side.

But even if these facts are not legally sufficient to demonstrate bias, they underscore how daunting it can be to go before a judge, arbitrator, or anybody else with the power to decide your fate and suspect that he or she might have already been bought. The perception that your opponent in an action might have possibly purchased justice out from under you is frustrating, demoralizing, and undermines faith in the systems that you are hoping will fairly redress wrongs.

And while an arbitrator can be selected, a judge, generally, cannot. We can’t afford the mistrust in our judicial systems that expensive campaigns breed. A 2010 poll (PDF) of Pennsylvania voters revealed that 93% want the chance to vote on whether to adopt Merit Selection. We hope that one day, Pennsylvania will be given the opportunity to change the way our judges are selected, and in doing so, rebuild our confidence in our courts.

Pulling from her own experience as a candidate for Wisconsin’s high court, state appellate court judge JoAnne Kloppenburg argues, “the key [to removing outside influences in the courtroom] is to get money out of judicial elections.”  And the only way to remove money from judicial elections, says Kloppenburg, is to simply not have judicial elections.

Similar to Pennsylvania, Wisconsin currently elects judges at all levels, including statewide judgeships.  Instead of such politically driven campaigns steeped in financial contributions, Kloppenburg supports adopting a merit selection system for Wisconsinites.  Pennsylvanians should make the change as well.

According to a recent article in the Daily Union, twenty-four states are now using merit selection to choose judges.  Merit selection can restore trust in the system, while putting the most qualified jurists on the bench.

Kloppenburg notes that the “integrity of our three-branch system of government depends on” an independent judiciary of impartial and fair judges.  Accordingly, judges should be free of the restraints and interests of campaign contributors, and politicking ought to be left to the executive and legislative branches.

Instead of electioneering, merit selection puts the focus where it ought to be, “on experience, qualifications, and character.”  Not only does this draw upon the most qualified candidates, but it also ensures that judges

“will not decide cases to please the groups that paid for their elections.”  And, perhaps most important, it guarantees that litigants will not be forced to stand before a judge whose tenure was paid for in part by an opposing party’s campaign contributions.

According to Kloppenburg, judges ought to have one simple agenda; applying the law impartially and fairly.  cheap viagra online It’s merit selection that can ensure a focus on this agenda.  It’s merit selection that Pennsylvania should adopt.

The conviction of Justice Joan Orie Melvin has sparked a firestorm of real action and widespread debate about how we select our judges.

Following weeks of trial testimony, Pennsylvania voters have shifted their focus onto the next logical step following the conviction of one of their own Supreme Court justices on buy cialis online charges of campaign corruption: judicial reform.

These days one cannot read the news without gleaning the obvious from the string of recent headlines, including “Merit selection deserves a look,” “It’s Time to Stop Electing Judges,” “Judicial Reform Needed In Pennsylvania,” “Conviction Could Lead to Judicial Election Changes,” “Lesson with Merit: Orie Melvin Case Has a Bigger Point for Lawmakers,” “Merit Selection a Better Way to Choose Judges,”

“More Calls for Merit Selection Sounded in Pennsylvania,” “Time to Change the Way Top Judges Get Their Jobs,” “Merit Selection for Statewide Judicial Seats Long Overdue,” “Let’s Just Do It: Time to Put Merit Selection of Judges on the Fast Track.”

Each of these articles begins in the same place—judicial campaign corruption—and ends with the same conclusion—merit selection is the best way to avoid judicial campaign corruption. This is the logical conclusion. In a recent op-ed PMC explained: “After all, this couldn’t have happened if judges weren’t elected in the first place.”  Further noting, in a separate op-ed, that “It’s time to get judges out of the campaign and fundraising business.”

According to PMC Advisory Board member and retired Superior Court Judge Phyllis Beck, “When a Supreme Court justice is convicted of misusing court resources for her campaigns, something is fundamentally wrong with the system.”  This has become painfully clear, not only to retired judges, members of the media, and voters, but to lawmakers as well.

A recent bill introduced in the Pennsylvania Senate would implement merit selection of statewide judges, thus “ensuring integrity on the bench,” remarked the bill’s primary sponsor, Democratic Senator Anthony H. Williams of Philadelphia.  There is no better time than now to address the obvious.

As the headlines pour in, Pennsylvanians may have a lot to read, but there is very little left to talk about.  It is clear that Pennsylvanians want—and Pennsylvania needs—merit selection.

In the wake of the criminal conviction of suspended state Supreme Court Justice Joan Orie Melvin, a column on TribLive.com offered an idea for an Orie reality show set on a Pennsylvania prison cellblock. The story is definitely surreal – three powerful sisters scheming and toiling to move up the Pennsylvania political food chain only to suffer an unceremonious fall from grace as the result of their own hubris. It’s the stuff of Greek tragedies.

You couldn’t make up a more interesting or compelling family drama if you tried. I have to admit, even I’ve floated the idea of a Lifetime movie based on the sisters.

The more I think about it, though, the more the harsh reality of the situation sinks in. Everything that these three women have spent their entire lives working for is gone. Their reputations have been destroyed. Their careers in public service are over. Beyond their personal despair, the actions of these three women have chipped away at the already fragile foundations supporting Pennsylvania’s governmental institutions.

Maybe we turn to humor because the reality of this story is so devastatingly disheartening that we need a coping mechanism. If we pretend that it’s comical, maybe we can ignore the fact that the integrity of our judicial system has been severely shaken. When a justice of the Commonwealth’s highest court is committing crimes to get herself on the bench, we have a very serious problem.

And it’s not just Orie Melvin. Duquesne University law professor Bruce Ledewitz admitted that the Orie jury would be reluctant to convict if there was any doubt about the level of corruption occurring in the judge’s office. “They’re not going to convict on a fine line. They understand there’s a certain amount of this that probably goes on with all politicians.” When he says politicians, Ledewitz means candidates who are running for office. You know who runs for office? Every judge in the state.

Pennsylvanians have to stop joking about mediocrity and criminality as though it’s a badge of honor or a testament to the “badass” nature of the state. That attitude only enables bad behavior. And saying that “everyone does it” doesn’t make it right.

We need to stop burying our heads in the sand. It’s time to get angry! It’s time to demand change! Pennsylvanians deserve better, and we can do better. The world doesn’t need any more reality shows (or Lifetime movies, for that matter). It’s time to cut the jokes, get serious, and repair the judicial system until we have something that we can be proud of.

Yesterday, a jury convicted Pennsylvania Supreme Court Justice Joan Orie Melvin of six out of the seven charges that had been brought against her. The campaign corruption charges related to the misuse of court resources in her 2003 and 2009 campaigns for the Supreme Court.

This is a dark hour for Pennsylvania. Judges are supposed to be the pillars upon which our system of laws stand – the gatekeepers of our justice, the wise and even hands in which we place our trust.

It’s time for something to change.

A Philadelphia Daily News editorial points

to Orie Melvin’s conviction as a strong indicator that the way our appellate judges are selected is flawed and should be replaced by a system of Merit Selection. The editorial notes that it’s rare for a Supreme Court justice to be convicted of a crime, but points out that some recent

cases where a Supreme Court justice did fall under the scrutiny of the law – such as in Michigan, where Justice Diane Hathaway resigned in January following her conviction for bank fraud, or in New York, where Justice Thomas J. Spargo was convicted of attempted extortion and attempted soliciting of a bribe – happened to occur in states where judges are elected, not appointed.

The editorial also cites a Brennan Center for Justice report, which identified Michigan and Pennsylvania as the two costliest states for recent judicial elections. Justice Orie Melvin and rival candidate Jack Panella raised a combined $5.4 million during the 2009 campaign for the Supreme Court bench.

Orie Melvin’s crimes could only have happened in a system where we elect our judges. We need judges who are impartial and unbiased, and who have reached the bench because of exemplary character, knowledge, and excellence – not because they are willing to sacrifice scruple on the altar of victory.

While Merit Selection isn’t a perfect system, it takes judges out of the fundraising and campaigning business and goes a long way toward keeping politics out of our courtrooms. It’s time for judicial selection reform in Pennsylvania. We deserve better.

Wisconsin is known for cheese, but the amount of cheddar rolling into the Wisconsin Supreme Court elections is crazy. It’s no secret that the money pouring into judicial elections across the country is breaking records. The 2012 judicial election cycle marked a banner season for spending, and states with off-year elections aren’t about to buck the trend.

In the run up to the Wisconsin Supreme Court primary election, the three candidates had collected nearly $300,000 among them. That’s a lot of dough

for a primary that was expected to turn out less than 10% of Wisconsin voters. In just over a month, incumbent Justice Patience Roggensack raised almost $200,000. Challenger Ed Fallone raised $75,000. Challenger Vince Megna lagged way behind. He didn’t raise any money in January. The Wisconsin primary took place yesterday, February 19. Mr. Megna didn’t make the cut.

Now that we’re heading into the real deal election, things are going to get serious. This is going to be one of the most important judicial elections in Wisconsin history. “’It’s going to be huge,’ says Megna of the role of money in the race. ‘This is probably the most important election [in years]. The winner controls the court. If Roggensack wins, the four-conservative majority stays in place. If she loses, the four-conservative majority is gone.’”

State Supreme Court justice is a nonpartisan position, and both Fallone and Roggensack have advertised their impartiality and eschewed political ideology. But with the political leaning of the court at stake, money will be pouring in, not to back the best candidate, but to bolster the donor’s favored ideology. The conservative group, Wisconsin Club for Growth, started airing pro-Roggensack ads before the primary to augment the candidate’s campaign.

At every level of government, the party divide seems to have gotten deeper, and the stakes of each election have gotten higher. Courts have become a political battleground. Partisan money flowing into judicial elections undermines the process and the court. Things are starting to stink…and it isn’t the cheese.

South Dakota and Indiana may change the composition of their Merit Selection commissions in coming days,

if legislation introduced in both states continues to move forward.

Currently, Indiana’s nominating commission comprised of the Chief Justice, 3 nonattorneys (one from each Court of Appeals district) picked by the governor, and 3 attorneys elected by the attorneys of the state. The introduced bill would restrict the governor’s picks to selections from a list compiled by the four legislative leaders (House speaker, House minority leader, President pro tempore of the the Senate, and Senate minority leader).

In South Dakota , the Judicial Qualifications Commission would be altered so that the state bar would appoint only one person, instead of its current three. These would be replaced by two members appointed by the legislature, with one person selected by the House Speaker, and one person selected by the Senate President pro tempore.

We’re interested to see how these efforts develop in Indiana and South Dakota, and are glad to see legislators taking an interest in how their judges are selected. We hope that legislators here in Pennsylvania will take a cue from their colleagues, and make judicial selection reform a priority.