Jun 28 2011

Stricter Recusal Standards Offer Only Part of the Answer

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.”

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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.

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Mar 23 2011

Public Financing Challenge at The Supreme Court

Published by under News,Our Perspective

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.

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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 i

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Mar 14 2011

Uncertain Future for Nevada Judicial Ethics Commission

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.

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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.

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Feb 23 2011

North Carolina Voters Wary of Courtroom Cash

Published by under Judges,News,Our Perspective

A new public opinion poll in North Carolina show just how corrosive judicial elections are to public confidence in a fair and impartial judiciary. The poll, which was conducted by the North Carolina Center for Voter Education, and our friends at the Justice at Stake Campaign, ” finds that 94 percent of North Carolina voters believe campaign contributions have some sway on a judge’s decision, including 43 percent who say campaign donations can greatly affect a ruling.”

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“Trust in the courts is eroded when judges have to dial for dollars from parties who appear before them,” said Bert Brandenburg, executive director of Justice at Stake, and we couldn’t agree more. Poll after poll after poll has shown that the public is convinced that the decisions of elected judges are influenced by campaign donations.

States have tried several ways to combat this perception. North Carolina has a first-in-the-nation system of public financing that allows judicial candidates (who can raise a small initial fund) to run for the bench without having to assemble huge campaign warchests. Recently, court rules in New York were modified to prevent court administrators from assigning a case to a judge if any of the lawyers or participants in the case donated $2,500 or more in the previous two years.

Our opinion is that the best way to restore trust in the impartiality of Pennsylvania’s appellate courts is to relieve our appellate court judges and justices of the burden of campaign financing in the first place. If campaign donations don’t play a role in putting appellate judges on the bench, then the public doesn’t have to wonder if those donations had an influence on the way those judges rule. That’s why we believe Merit Selection is a superior solution.

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Feb 08 2011

Alabama Judicial Campaign Disclosures Reveals Unusual Giving

Published by under Judges,News

Campaign finance disclosure documents from last year’s Alabama Supreme Court race support the old adage about politics making strange bedfellows. The Birmingham News reports that funding for two Republican candidates for the state’s highest court came from plaintiff trial lawyers, who’ve traditionally supported Democrats in state appeals court races.

Through a complex series of contributions to political action committees and media consultants, plaintiffs firms directed nearly $950,000 to the campaigns of Republican hopeful Tracy Cary (who lost to Justice Mike Bolin in the June 1 primary) and Justice Tom Parker (who was re-elected to the court in November). Thanks to Alabama’s campaign finance laws, donations made in judicial primaries were kept secret until well after the general election.

The 2010 election may have marked a new approach, with Democratic backers funding Republicans as part of their political strategy, said GOP state chairman and new Speaker of the House Mike Hubbard of Auburn.

“I suspect that a lot of the races will be fought in our primaries,” he said. “The Democrats feel they can’t win in the general election, so they put up or fund a candidate in the Republican primary.”

Why would organizations that traditionally support Democratic candidates feel compelled to support Republicans in judicial primaries? Because partisan judicial elections are all about political connections and campaign fundraising. Who can blame plaintiff’s firms for feeling like they have to spend big bucks on judicial campaigns? The business interests that they litigate against certainly are. And if pumping that money into Republican primaries makes it more likely that they’ll be spending to actually put a candidate on the bench, then it sounds like a better investment.

When we select judges through partisan elections, these are the kind of calculations that determines who reaches the bench. Wouldn’t it be great if we could choose our appellate judges based on their experience, knowledge and qualifications, rather than their ability to work the political system, and raise lots of campaign money? That’s why we feel that Merit Selection is a better way to choose appellate judges in Pennsylvania.

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Jan 06 2011

A Guide to State Rules on Disqualification

Published by under News,Resources

The American Judicature Society Center for Judicial Ethics has announced the creation of a resource that promises to be a useful tool for court watchers. The Society’s new document, called “Judicial Disqualification Based on Commitments and Campaign Contributions,” tracks the adoption of state rules that require disqualification of judges based on relationships with, or campaign donations received from, a party or attorney involved with the case.

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The document, which will be updated as state rules are adopted or modified, is available on the Society’s page devoted to judicial disqualification.

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Jan 21 2010

Historic U.S. Supreme Court Decision Will Let the Money Roll In to PA Judicial Elections

Published by under News

PMC and PMCAction released this press release today in response to the United States Supreme Court’s latest decision in Citizens United v. Federal Election Commission:


Contact: Shira Goodman/Lynn Marks

Pennsylvanians for Modern Courts and PMCAction

(o) 215-569-1150; (m) 215-680-1163


U.S. Supreme Court Lets the Money Roll In to Judicial Elections

Pennsylvanians for Modern Courts and PMCAction explain how new campaign finance decision will bring more money into statewide judicial elections

PHILADELPHIA (January 21, 2010) –  Pennsylvanians for Modern Courts (PMC) and PMCAction today predicted that the United States Supreme Court’s long-awaited decision in Citizens United v. Federal Election Commission will open the floodgates to direct corporate and union spending in statewide judicial elections.  The decision, focusing primarily on the right to free speech, grants corporations and unions a constitutional right to make independent expenditures in elections directly from their corporate coffers, without the need to establish separate political action committees to fundraise and spend money.  The decision invalidates the laws of Pennsylvania and 21 other states prohibiting such independent campaign expenditures. Shira Goodman, Deputy Director of PMC and PMCAction, explained, “It’s like the Supreme Court said ‘let the money roll in.’”

“But,” explained Goodman, “given Pennsylvania’s experience in the 2009 Supreme Court election, more money spent on getting judges on the bench is the last thing we need.”  According to a recent report by PMC, that election cost at least $4.5 million dollars, and when political party spending is factored in, likely several million more.

The public has been increasingly concerned about the role of money in judicial elections, worrying that justice might be for sale to the biggest campaign contributor or spender.  Today’s decision will only intensify those concerns by making it easier for corporations and unions that frequently litigate in the state courts to participate in electing the judges who will decide their cases.  As Justice Stevens noted in his dissent (quoting the Justice At Stake amicus brief PMC joined), “At a time when concerns about the conduct of judicial elections have reached a fever pitch . . . the Court today unleashes the floodgates of corporate and union general treasury spending in these races.”

In recent years, judicial elections have become more like elections for other public offices, despite the fact that judges are different from legislators and executive officers.  Electing judges in expensive, partisan contests complete with negative ads, third-party spending, mass media campaigns and debates over “hot button” issues, makes it difficult to remember that judges are sworn to be impartial arbiters of the law.  Instead, people worry that popular opinion, personal bias, and the desire to please campaign contributors or supporters will sway judicial decision-making.  This is unacceptable, but it is the natural by-product of our electoral system. Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

“There is a simple solution,” said Goodman.  “Change the way we select appellate court judges.”  Merit Selection is a hybrid system that combines the best features of appointive and elective systems and adds a new component – an independent, bipartisan citizens’ nominating commission to screen and evaluate potential candidates for the bench.  The Governor nominates a candidate from the nominating commission’s list of the most qualified, and that candidate is subject to Senate confirmation.  After an initial four-year term (and every ten years thereafter), a judge would stand before the public in a nonpartisan yes/no retention election.

Bills are currently pending in the Pennsylvania legislature to implement a Merit Selection system for the three state-wide appellate courts.  Amending the constitution requires the legislature to pass the bills in two successive sessions.  Then, the people of Pennsylvanian would vote in a referendum on whether to change the way we select appellate judges.

As noted in the amicus brief in which PMC joined, “Courts can only be impartial if they are independent.  To ensure due process, judges must be able to make decisions without looking over their shoulder at wealthy donors [and supporters] whose cases they must decide.”  The Supreme Court today made that more difficult.  Pennsylvanians have the opportunity to make it much easier:  change the way our appellate judges reach the bench.  “PMC and PMCAction believe it’s time to let the people decide.”

Pennsylvanians for Modern Courts is a nonprofit, nonpartisan organization working to promote the reform of Pennsylvania’s judicial system.  www.pmconline.orgPMCAction is an affiliated nonprofit, nonpartisan organization that lobbies for court reform initiatives. www. pmcaction.org. Blog: www.JudgesOnMerit.org.

Also responding to the decision are PMC coalition members Justice at Stake and American Judicature Society (pdf).

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Nov 18 2009

Breaking: Rendell announces support of Merit Selection at press conference

Reports are coming in from the press conference held by Governor Ed Rendell. From the Harrisburg Patriot-News:

The governor, speaking on the heels of last week’s fresh wave of corruption charges lodged against former legislative leaders, bemoaned the fact a “broken system” has undermined some of his policy goals and caused other accomplishments to be largely overlooked.

To change things going forward, Rendell pledged new efforts to get legislation passed putting strict new rules on campaign financing, boosting citizen involvement in the redrawing of legislative and Congressional districts, and moving to merit selection of state judges.

From the Philadelphia Inquirer/AP:

Rendell renewed his pitch Wednesday for overhauling the state’s campaign-finance laws, the selection of appellate judges and the process by which state legislative districts are redrawn every 10 years.

WNEP-TV reported earlier on Rendell’s announcement, and you can read a short article and watch a video interview here.

You can see our earlier coverage of the Governor’s tour of the Northeast here.

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Nov 09 2009

"There Must be a Better Way to Choose Appellate Judges"

The editorial board of the Reading Eagle makes a strong case to move to Merit Selection of judges in an editorial published today. The paper cites the record amount raised to date by Judge Jack Panella ($2.35 million), and that the total raised by both campaigns is expected to total over $4 million by the time final reports are due on February 1, 2010.

In fact, the numbers do not reflect the true amounts raised by the candidates. As we’ve reported on previously (here, here, and here, for example), the widely reported amounts raised in elections typically represent only money contributed directly to the campaigns of the candidates, and not third party and political party money spent directly on the election. Election observers will note that all of Judge Orie Melvin’s television commercials were paid for by the Republican Party, and thus represent a huge sum of money not reflected in her campaign’s reported contributions and expenditures (Panella’s ads were paid for directly by his campaign).

PMC’s Lynn Marks was quoted as saying why all of this is so troubling:

[T]he money comes from lawyers, law firms, unions and businesses who frequently litigate in the state courts. . . . These are not the types of records Pennsylvania should be proud of. But when you elect judges in partisan contests, the elections become more expensive, not less so.'”

The clincher:

Marks said nine of 10 Pennsylvanians polled by a state Supreme Court commission believe that judges are at least sometimes influenced by campaign contributions.

That’s no way to run an election for the state’s appellate court system. There has to be a better way, and there is. And it is nothing new. In fact former Gov. Tom Ridge, before he left office to join President George W. Bush’s Cabinet, urged the Pennsylvania Legislature to begin the move toward merit selection of statewide judges.”

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There are currently bills before the state house and senate proposing a detailed plan for the selection of appellate judges based on merit. It’s time for the state to decisively take money out of the equation.

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Oct 30 2009

Partisan Judges?

Published by under Judges,Opinion

Wait, did we say partisan judges? Isn’t the very term antithetical to the core principle of independent judges and an independent judiciary? Of course it is. But partisan judges are the necessary outcome of our current judicial election system because they are nominated by parties and run on party labels.

A column by Eric Heyl in today’s Pittsburgh Tribune-Review gives the chronology of the recent spate of “mud-flinging” in the Pennsylvania Supreme Court campaigns.  We think mud is a generous euphemism for what is being spread by supporters of the two candidates.

More importantly, though, the article asks why this contest has taken such a negative turn. The surface answer: “Orie Melvin and Panella are resorting to such tactics because polls indicate they are virtually tied, with a majority of voters still undecided.”  But why are voters undecided? Because,

“Strictly in terms of legal acumen, it matters not a whit which candidate wins. Both Orie Melvin and Panella are experienced jurists who were highly recommended by the state bar association. Presumably, neither would ever confuse torts for tarts and attempt to down a few as an afternoon snack.”

Who ends up on the bench is of great importance to us, because decisions judges make affect all of our lives. But if both judges are equally qualified, then why would this election matter at all? According to the people who are most invested in the outcome, as the article points out, the reason is because:

“Whoever wins Tuesday tips control of the seven-member court in favor of his or her party. Whoever wins gives that party a distinct advantage in the legal battles expected when new legislative district maps are drawn after the 2010 Census.”

We’ve heard it before in the last few weeks, “this is such an important race because it will determine the political balance of the Court in a redistricting year.” It is so important, in fact, that both candidates, directly or indirectly, are flinging so much mud that “the dry cleaning bill is bound to be steep.” And we just accept it.

The incredulity must be creeping in.

When did it become okay to count the number of “Ds” and “Rs” on the bench? We should be trying instead to get the fairest, most qualified, and most impartial judges possible. While partisan elections are a critical component of the legislative and executive branches, we must remember that the judiciary is not a political branch of government. But until we begin selecting our judges and justices based on merit, and stop the circus of campaign fundraising and advertising, the mud-flinging will continue, and the public will get nothing from the process but the perception that its judges are anything but impartial.

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