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An article in the Des Moines Register announces that Iowa Supreme Court Justice David Wiggins still believes that Merit Selection is best way to pick judges. Refusing to “second guess” the recent election in which three Iowa Supreme Court justices were ousted, Wiggins declared that it was time for the court to move on.

Speaking as a panelist at an event sponsored by the Iowa chapter of the American Constitution Society, Wiggins expressed confidence in the selection committee’s role in creating fair and impartial courts. He stated that he believes they provide the governor with a list of the most qualified candidates. Ben Stone, the executive director of the American Civil Liberties Union of Iowa and another panelist, emphasized the importance of an independent judiciary:

There can be no civil liberties – there can be no individual freedom – in a country that does not have an independent judiciary. And in a state that doesn’t have an independent judiciary, all of the rights that are at stake in the state courts are up for grabs.

We agree that fair and impartial courts are necessary, and that Merit Selection is the best way to achieve such courts. Retention elections are an important component to the Merit Selection system, but there is a problem when retention elections are used to target judges on single issues. As PMC recently stated in an editorial in the Legal Intelligencer, retention elections should be an opportunity for the public to evaluate the whole of a judge’s tenure. Formal evaluations of judicial performance and ongoing public education about the role of the courts and judges are tools that should be used to ensure that the public understands the role of retention elections. Retention elections give the public the responsibility of maintaining fair and impartial courts, and public education is key to making this system work.

Yesterday the Legal Intelligencer published an editorial written by PMC about retention elections. Executive director Lynn Marks and deputy director Shira Goodman discuss the difficulties raised for retention elections by the ouster of three Iowa Supreme Court Justices, as well as the appropriate role for retention elections going forward. 

Despite the money and partisan campaigning that occurred in some retention elections this year, PMC remains confident that retention elections have an important function to serve. Ideally, retention elections should: “insulate sitting judges from the most dangerous elements of elections – the influence of campaign contributions, political party pressure and popular opinion. To combat the influence of special interest groups in retention elections, it is important for:

good government groups, lawyers, bar associations and all those who care about fair and impartial courts to take responsibility for better public education about courts, judges, judicial independence and the role of retention elections.”

The editorial ends with a call for education, and emphasizes the importance of the public’s role in a merit selection system:

there must be systematic, ongoing public education so that there can be a real appreciation for the special role of courts and judges. We need public buy-in of the notion that we are all responsible for protecting fair, impartial, independent courts.

The Legal Intelligencer today examines (subscription required) the sources of the recently reported contributions to the election campaigns of Supreme Court candidates Jack Panella and Joan Orie Melvin.  Most interesting to us is the focus on one particular contributor and the motivation for its contributions.

The article notes that most of the money reported by both campaigns in this cycle came from a single source — Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers Association. This worries some observers:

“I just think too much money from a single organization is not a good thing,” said Rob Byer, a former Commonwealth Court judge and head of the appellate division of Duane Morris’ trial practice group. “The problem is, how do you get people interested in contributing the money needed for judicial elections unless they have an interest in the outcome of cases?”

Mark Tanner who leads the PAC explained the rationale for the existence of the PAC and its contributions:

Tanner said the committee was formed as a way for lawyers and law firms to support candidates without the ethical quandary that comes with writing a check directly to a candidate.

“A number of lawyers have contributed to that PAC with the goal of supporting the judges we believe in,” Tanner said. “Clearly Jack Panella received more in funding, but Joan Orie Melvin received funding, too. . . .”

“Certainly Judge Panella and Judge Melvin have staked out different ground regarding complaints brought by individuals,” Tanner said. “There were certainly opinions that showed Melvin was supportive of individual rights, but on balance we found that Judge Panella was more supportive of our view on how the justice system should operate.”

Tanner’s response only served to increase Byer’s concern:

“That’s totally antithetical to a fair system of justice,” Byer said. “Such statements don’t help the candidates they’re supporting.”

Organizational support for a candidate should be based on qualifications and experience, not whether the judge is more likely to rule in favor of a group’s interests, Byer said.

Why do individuals, organizations and PAC’s give to some candidates and not others? What motivates an individual or entity to contribute to a judicial candidate? And how do the answers to these questions affect the public perception of our courts — already severely diminished and inclined to believe that “justice is for sale?”

Following the May primary elections, Superior Court Judge Maureen Lally-Green announced her retirement and created a fourth vacancy to be filled during the fall general election.  The Republican and Democratic parties are poised to meet later this month to select candidates to join their existing slates.

The Legal Intelligencer (subscription required) reports that there are nine contenders, several of whom are sitting judges.  On the Republican side, Chester County Common Pleas President Judge Paula Ott, Philadelphia Common Pleas Judge Paul Panepinto, Montgomery County Common Pleas Judge Arthur Tilson, Monroe County Common Pleas Judge  Margherita Worthington, and Westmoreland County attorney Harry Smail, Jr. are seeking the nomination.  On the Democratic side, Philadelphia Common Pleas Judges James Murray Lynn, Paula Patrick and  M. Teresa Sarmina and Washington County President Judge Debbie O’Dell-Seneca are seeking the nomination.

Pennsylvania has a busy election season shaping up.  Voters will be filling one vacancy on the Supreme Court, four on the Superior Court and two on the Commonwealth Court.  Learn more about the upcoming elections on PMC’s current election page.

We reported earlier that the Philadelphia Democratic party wanted unified support for its judicial slate this time around.  We also reported that certain ward leaders were not certain they would be able to agree.  Now, the Legal Intelligencer reports on its blog that leaders of the City’s Eighth Ward have agreed to support the party’s endorsed candidates who also received recommended ratings from the Philadelphia Bar Association. Ward co-chairman Gregory Harvey explained the ward’s decision:

[Democratic Party leader Bob] Brady appears willing to tolerate the decision of a ward, which finds the bar association’s recommendations important, to only back the members of the DCC slate who are “recommended,” Harvey said. But ward committee officials did not want to endorse candidates without the City Committee’s backing, since Brady has pushed for a unified citywide ticket without other names. . .

Once again, this situation raises the question of what the electoral system is designed to do.  Unlike Merit Selection, which is designed to get the most qualified, fair and impartial judges on the bench, judicial elections place other considerations first, and qualified candidates reach the bench despite the system, not because of it.  This does not make sense to us.

The Legal Intelligencer has published a commentary piece (subscription required) by PMC and PMCAction entitled “People Should Decide on Change of Judicial Selection Process.”  The piece focuses on the process required to amend the constitution to change how judges are selected.  This process requires the legislature to pass the amendment in two successive legislative sessions.  Second passage is followed by a public referendum.  That means the constitution can only be changed if the people of Pennsylvania vote for it to be changed.

We trust the people of Pennsylvania to make decisions about how to select appellate court judges:

Pennsylvanians for Modern Courts and PMCAction believe the people of Pennsylvania should have the opportunity to decide whether to change the way we select our appellate judges. It has been 40 years since the question was last put to the people, and, in those 40 years, judicial elections have changed dramatically. We believe that it’s time for Pennsylvanians to take a serious look at how appellate judges are selected and determine whether it’s working or if we need a change.

We wonder why our confidence in the public is not shared.  Many defenders of the current judicial election system claim they oppose change because they want to protect the franchise.  But this claim cannot be reconciled with their refusal to let the people vote on this critical issue.

It’s time to find a better way to select appellate court judges — a way that doesn’t rely on expensive campaigns and that reduces the influence of random and irrelevant factors like ballot position, name recognition and fundraising ability. We want the people of Pennsylvania to vote on whether or not to change the judicial selection process. We’re not afraid to hear their answer. We wonder why “defenders of the franchise” are afraid to let the people vote.

A judicial discipline case in Pennsylvania is again demonstrating the problem inherent in fundraising for judicial election campaigns.  As the Philadephia Inquirer reports, Philadelphia Traffic Court Judge Willie Singletary has been found guilty by the Court of Judicial Discipline of four counts of judicial misconduct stemming from his actions while campaigning for the bench.

During a 2007 ceremony called the “Blessing of the Bikes,” Singletary solicited donations for his judicial campaign.  This activity, and the specific words he used, were found to violate several provisions of the rules of judicial conduct, including the prohibition against direct solicitation and the prohibition against making promises of particular conduct when on the bench.

The dollar amounts at issue here were low compared to races for the state Supreme Court.  Singletary had been making requests for $20 donations, and he only raised $285 during the event in question.  But that doesn’t matter, because he implied that the donations would result in favorable treatment for the donors once he reached the bench.  As the Legal Intelligencer reports (subscription required):

During his donation solicitation, Singletary asked the bikers, according to court papers: “‘Now you all want me to get there, you’re all going to need my hook-up, right?’”. . . .

The court. . .  concluded that: “No one, hearing this, could fail to understand that respondent was promising that anyone who gave him money would get favorable consideration from him if he was elected judge. This conduct is the pure antithesis of the concept of ‘judge.’”

We’ve reported before that there is a growing public perception that campaign contributions affect decision-making in the courtroom.  Incidents like this only serve to strengthen that perception and further undermine confidence in the impartiality of the courts.

Folks are talking about Tuesday’s Senate Judiciary Committee hearing on Merit Selection.  The Legal Intelligencer ran a front page article about the hearing, quoting many who testified and noting that Senator Jane Earll plans to reintroduce the legislation in the new session beginning in January 2009. The Legal reported that Merit Selection supporters “argued that while politics can’t be taken out of the judicial selection process, an appointed system will lessen the sway of partisan politics over judicial candidates who must decide judicial controversies impartially.”  The Legal also noted that:

[N]o rights would be taken away in this proposal because Pennsylvania voters will ultimately have the right to approve or disapprove the proposal if the merit selection bill passes both legislative houses in two consecutive sessions, said Lynn Marks, executive director of PMC; Gene Barr, vice president for government relations at the Pennsylvania Chamber of Business & Industry; and Edward Lanza, an attorney with Saul Ewing and a member of the Hispanic Chamber of Commerce of Central Pennsylvania’s board.

Our Coalition partner the Pennsylvania Chamber of Business & Industry posted this account of the hearing, quoting the testimony of Vice President Gene Barr:

In order to command the absolute respect and confidence of the public at large in an independent, non-partisan judiciary, Pennsylvania needs to move from a partisan election approach driven by special interests and money to one that is based upon one’s qualifications.

And check out Gavel Grab’s post about the hearing.

Lawyers Need to Make Sure New Merit Selection Proposal Becomes Reality
Copyright 2008, The Legal Intelligencer. Reprinted with permission.
The governor supports it. Several legislative committee chairs support it. The statewide chairs of both major parties reportedly support it. So whose fault will it be if we don’t get merit selection this time around?

Nobody understands better than the legal community the importance of merit selection. Particularly at the appellate level, nobody should be a louder or more vocal or more active supporter of merit selection than we, the users of the system.

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