judgesonmerit.org

An editorial in the New York Times entitled “No Way To Choose A Judge” urges Merit Selection as a good solution for Pennsylvania. The editorial recounts recent judicial election news in Alabama and the ongoing investigation into the use of government staff for the elections of State Senator Jane Orie and her sister Supreme Court Justice Joan Orie Melvin. Then the editorial notes:

These seamy doings have helped spark a promising effort by Pennsylvanians for Modern Courts, a nonprofit advocacy group, to persuade the State Legislature to approve a constitutional amendment that would scrap competitive partisan elections. Instead the state would adopt a new system of initial merit appointment and nonpartisan retention elections.

The editorial notes that no system of choosing judges is perfect but opines that Merit Selection “would be a start toward ridding the state’s courtrooms of politics and campaign cash.”

Passing the pending legislation is the first step in a long process of amending the constitution, a process that culminates in a public referendum. We hope the people of Pennsylvania will get the opportunity to decide whether there is a better way to choose appellate court judges.

There has been extensive news coverage of the revelation that Supreme Court Justice Joan Orie Melvin is the target of an on-going grand jury investigation about the use of government staff for election activities.  In the wake of those revelations, PMC called on the Justice to temporarily step aside from her judicial duties; PMC also urged the state Supreme Court to temporarily suspend Justice Orie Melvin if she failed to voluntarily step aside. PMC has been cited in numerous articles throughout the Commonwealth and by local radio stations.

Deputy Director Shira Goodman was quoted in The Legal Intelligencer regarding the target letter Justice Melvin received from the grand jury: “That was kind of the line for us. . . [The target letter] moved this from the realm of ‘this is kind of a sticky situation’ to ‘this is really much more serious and could undermine her ability to serve.’” Both the Pittsburgh Tribune-Review and Post-Gazette quoted PMC Executive Director Lynn Marks who stated that: “All citizens, including judges are presumed innocent until proven guilty, but judges and especially supreme court justices should not be permitted to judge others while under the cloud of such a serious investigation.”

Philadelphia Public Radio WHYY News Works also quoted Goodman in regards to Justice Melvin’s recusal from hearing cases involving the Allegheny County prosecutor who argued the previous criminal cases against her sisters: “We don’t think it’s enough. . . I think she would still be weighing in on very important questions that affect all Pennsylvanians from family matters to business questions to possibly the redistricting case and we don’t need a cloud. We don’t need questions about whether a judge. . . legitimately should be there or not.”

On Thursday, the Pittsburgh Post-Gazette echoed PMC’s call for Justice Melvin to take a leave of absence or face suspension:

Justice Melvin simply cannot go on as if this is business as usual. While her own presumption of innocence has not changed, her continuing presence on the high court does no service to the people of Pennsylvania or the venerable institution whose reputation she is supposed to uphold. Justice Melvin has already conceded half the point by recusing herself from cases involving the Allegheny County district attorney’s office. She must go further and take a leave of absence until this black cloud is cleared. If she won’t go voluntarily while the grand jury tries to connect the all-too-prominent dots of this case, Chief Justice Ronald D. Castille should use his power to convene a four-member majority of the court to suspend her.

Harrisburg Public Radio WITF also spoke to Goodman who outlined the problems with the judicial selection process in Pennsylvania: “We have a system that treats judges like politicians. They have to get party endorsements, they have to raise money, they have to curry favor with special interest groups to be able to run and succeed in a 67 county state.”  Goodman went on to explain that the grand jury investigation demonstrates why elections are not the right way to choose our appellate judges.

Pennsylvanians for Modern Courts today called for swift action following the Pittsburgh Tribune-Review‘s report that Supreme Court Justice Joan Orie Melvin is the target of a grand jury investigation focused on the improper use of judicial and legislative staff for her election campaigns. PMC has called for Justice Orie Melvin to temporarily step down or face suspension by the Supreme Court.  AS PMC Executive Director Lynn A. Marks explained, “All citizens, including judges are presumed innocent until proven guilty, but judges and especially Supreme Court justices should not be permitted to judge others while under the cloud of such a serious investigation.”

PMC also called on the Legislature to amend the state constitution to end election of appellate judges in Pennsylvania.  As PMC Deputy Director Shira J. Goodman explained:

 Judicial elections require candidates to campaign, politick, and fundraise, eliminating the distinction between them and politicians. Judicial elections are designed to pick the best campaigners and fundraisers. We need a system that is designed to get the most qualified, fair and impartial judges on the bench. . . . PMC calls on the legislature to. . .  give the people of Pennsylvania the opportunity to decide whether there is a better way to select appellate judges.

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.”

Wisconsin can learn the perils of partisanship in judicial elections from PA. Like Pennsylvania, Wisconsin still elects its appellate judges. Unlike the Keystone State, however, judicial candidates in Wisconsin do not run in partisan elections, that is, there is no “(R)” or “(D)” next to candidates’ names on ballots. This is an important distinction. PA is one of only six states that elects all of its judges in partisan elections. As a result, judicial elections in the Commonwealth have become increasingly negative, and increasingly expensive.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

The Philadelphia Inquirer today called for judicial selection reform, arguing that “The case for reforming the way Pennsylvania selects its judges keeps getting stronger.”  Citing PMC’s analysis of the fundraising and spending in the 2009 Supreme Court election, the editorial focuses on the poisonous role of money in judicial elections:

It’s the troubling influence of campaign fund-raising that continues to create the most concern about electing judges in head-to-head partisan contests.

Most Pennsylvanians say they suspect that justice is for sale because candidates for judgeships have to raise campaign funds. The big-spending 2009 Supreme Court election between Republican Joan Orie Melvin and Democrat Jack Panella did nothing to restore their fraying faith in an impartial judiciary.

The Inquirer urges action, and we hope the call is heeded:

The course for state policymakers is clear: Step in and reform judicial selection, or continue to preside over a system that erodes public confidence in justice as it’s dispensed in Pennsylvania.

An editorial in the Times-Tribune of Scranton quotes PMC’s analysis of the cost of the 2009 Pennsylvania Supreme Court election, noting:

Pennsylvania once again leads the nation, as it did in the 2007-2008 election cycle, in the cost of statewide judicial elections. But there is a twist this time, in that the cost is in much more than money alone.

The editorial goes on to detail the heavy spending by the state political parties and other special interests, and notes that the political parties paid special attention this year because of the Supreme Court’s likely role in the upcoming dispute over legislative redistricting.

Then, the editorial recounts new allegations about improper fundraising activities by State Senator Jane Orie on behalf of her sister Joan Orie Melvin’s campaign for Supreme Court.  The editorial includes the Senator’s accusations that the probe is politically motivated by the District Attorney (son of a former Supreme Court justice who now works for the gaming industry) in retaliation for the Senator’s anti-gambling stance.  The editorial astutely observes:

All of that is the sort of inside political baseball for which Pennsylvania is infamous. But the point is that Pennsylvanians shouldn’t have to worry about those back stories if they have business before an appellate court.

This, of course, is the key point.  When you go to court to have your disputes resolved, you want them resolved according to the law and the facts.  Political calculations, campaign donations, personal vendettas — none of this has any role in the way judges are supposed to decide cases. The problem is, electing appellate court judges the same way we elect political office holders makes it hard to believe that justice and the law prevail in our courtrooms.

The editorial closes with this call to action, which we hope will soon be heeded:

Bills are pending in both houses to begin the process of amending the state constitution to establish merit appointment of appellate judges. Lawmakers should initiate the change.

Pennsylvanians for Modern Courts today announced that the 2009 Supreme Court election between Republican Joan Orie Melvin (the winning candidate) and Democrat Jack Panella is likely to set new fundraising and spending records.  The final numbers are not yet in, as candidates can continue to raise funds until the end of the year.  But we can now report that the Supreme Court election cost at least $4.5 million, and PMC believes the total is significantly higher.

PMC’s press release documents fundraising and spending by the candidates’ campaigns, but notes that although they together raised and spent over $3.6 million, that is not the whole money story.  Instead, we found it necessary to research who else was spending money on the election.

The answer was political bodies, incuding the state Republican Party, the state Democratic Party, and the Republican Senate Committee.  In fact, the state Republican Party directly funded Judge Orie Melvin’s television campaign, to the tune of at least $975,849.  This means the state Party outspent the candidate’s own campaign.

Reports also reveal that from January 1, 2009 until November 23, 2009, the state Republican Party spent at least four million more and the state Democratic Party spent close to $2 million. Although the parties were not required to identify the candidates on whom they spent money, it seems reasonable to assume that a good portion of that six million dollars was directed to the Supreme Court election.

Pennsylvania had the nation’s most expensive Supreme Court elections in the 2007-08 election cycle, and the available data is leading elections experts to predict that Pennsylvania will again earn that title for 2009-10.   As PMC’s Lynn Marks explained, “Pennsylvanians should not take pride in leading the nation in spending for judicial elections.  Each dollar raised and spent raises yet another doubt in voters’ minds about whether or not justice is for sale.”

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.”

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.

The votes are in. And the unofficial totals show that Joan Orie Melvin has been elected to the Supreme Court.  The top three vote-getters for the Superior Court vacancies were Judy Olson, Sallie Mundy, and Paula Ott. The returns for the fourth seat are still too close to call, with Anne Lazarus and Robert Colville in a tight race for the seat.  The two Commonwealth Court seats will be filled by Patricia McCullough and Kevin Brobson.  Results can be found at the Department of State’s Election page.  We’ll be posting about the election throughout the day, so check back.