judgesonmerit.org

In an article in the Times-Leader, Terrie Morgan-Besecker asks whether local judicial candidates should accept campaign contributions from attorneys. Focusing on the Luzerne County judicial election, the article notes that 13 of 16 candidates in the upcoming primary are accepting contributions from attorneys. There are six open seats.

As of May 6, 11 of the 13 candidates accepting attorney donations had collected a total of $58,571 in individual donations of $250 or more. Individual donations of less than $250 do not show the occupation of the donor. Over 70 attorneys have made contributions of $250 or more, and the majority of those lawyers practice in Luzerne and or Lackawanna counties. Most of the donations fall in the $500-$1,000 range. The candidates accepting attorney donations and their supporters point out that campaign fundraising is a reality of seeking political office, and that without fundraising only the wealthy would be capable of running.

Although the candidates accepting attorney contributions insist that it will not affect their fairness and impartiality on the bench, the three candidates refusing to accept attorney donations point out that even if that is true it is not the public’s perception. These candidates – Mike Blazick, Molly Hanlon Mirabito, and Lesa Gelb – note the public’s lack of trust in the court system and insist that: “trust can’t be restored if there’s any question that a judge’s impartiality might be impacted by contributions.” Gelb points out that: “People equate money in the courtroom with bias and impropriety” and Blazick explains: “[y]ou can’t restore confidence in the courts by taking money from those who appear in the courts every day.”

Citizens’ Voice reports that of the sixteen candidates for Luzerne County judge, only two did not make contributions to judicial campaigns between 2001 and 2009. Eight candidates contributed to Mark A. Ciavarella’s 2005 retention campaign. Ciavarella was recently found guilty of racketeering and other charges. Eight candidates contributed to Michael T. Toole’s 2003 judicial campaign. Toole was recently sentenced to thirty months in a federal prison for accepting illegal gratuities from an attorney and failing to report income on a federal tax return. Of the candidates who contributed to judicial campaigns some felt pressure to do so from the “culture and environment,” while others claim to have felt no such pressure.

The candidates are treating contributions to their own campaigns in various manners. Some candidates are declining to accept contributions from lawyers. Lesa Gelb is one such candidate, and explaining her decision she said: “It’s a distasteful way of doing business. It’s time we moved past this.” Mike Blazick is another candidate who will not accept donations from lawyers, and he is one of the two candidates who did not contribute to any judicial campaigns between 2001 and 2009. Blazick gave his opinion on contributions from lawyers: “I have always been uncomfortable with lawyers contributing to judicial campaigns. I think that it’s unfair that lawyers are put in a position to contribute to judicial campaigns and then have to appear in those judges’ courtrooms.” Some candidates will accept contributions only from lawyers they are familiar with, while still others will seek and accept donations from lawyers generally. Vito DeLuca explained his decision to accept contributions from lawyers based on his inability to spend a lot “of my own money.”

The cycle of contributions is a good reminder of the role money plays in judicial elections. The money required to run a competitive judicial campaign can financially intertwine lawyers and judges who will later interact in courtrooms.

PMC issued the following press release following the announcement of the jury’s verdict in the federal corruption trial of former Luzerne County judge Mark Ciavarella:

Pennsylvanians for Modern Courts (PMC), reacting to the federal jury’s verdict in the trial of former Luzerne County judge Mark Ciavarella, urged the public to “Take back our courthouses.”
Executive Director Lynn A. Marks explained that “Courthouses belong to the people. Judges, court staff, and attorneys are there to serve the system, not to manipulate it for personal gain.” Tragically, this fundamental proposition was completely turned upside down in Luzerne County.

Deputy Director Shira Goodman explained that the public must now act to ensure that the lessons from the Luzerne County scandal will resonate across the Commonwealth. “It reminds us all of our own responsibility for our institutions of government and teaches that when something looks off, we must ask questions.”

PMC encourages the people of Pennsylvania to continue to question how this scandal was allowed to be perpetrated, and how safeguards in the justice system failed to prevent, or at least catch the problems, before the rights of innumerable children and their families were violated. It is time to implement changes that will forestall such abuses of power in the future. PMC urges that “We, the public, must call on our leaders in the Governor’s office, the legislature and the Supreme Court to make sure this happens.”

Pennsylvanians for Modern Courts is a statewide, nonprofit, nonpartisan organization working to promote the reform of Pennsylvania’s judicial system.

The problems with Pennsylvania’s judicial elections took a national spotlight this week. The Friday night primetime PBS news show “Bill Moyers Journal” was devoted this past week to the question we’ve been asking for a long time:

How would you feel if you were in court and knew that the opposing lawyer [or party] had contributed money to the judge’s campaign fund?

The show’s response to the question posed sends a grave warning to the citizens of Pennsylvania and of other states that elect judges:

This is not an improbable hypothetical question, but could be a commonplace occurrence in the . . states where judges must raise money to campaign for their seats — often from people with business before the court.

Though many states have elected judges since their founding, in the past 30 years, judicial elections have morphed from low-key affairs to big money campaigns. From 1999-2008, judicial candidates raised $200.4 million, more than double the $85.4 million raised in the previous decade (1989-1998).

Because of the costs of running such a campaign, critics contend that judges have had to become politicians and fundraisers rather than jurists.

Friday’s show discusses the expected impact the recent Citizens United decision will have on judicial elections, and starts with a re-airing of the jaw-dropping 1999 investigation that focused on “justice for sale” in 3 states, Pennsylvania, Louisiana, and Texas. In what can best be described as tragic irony, the 1999 show began in Wilkes-Barre, Pennsylvania, ground-zero for the infamous Luzerne County courthouse scandal, and details the tortuous fundraising and campaign strategizing required to get a seat on the Luzerne County bench.

One of the judges whose campaign for election was profiled, Peter Paul Olszewski, was not retained for another term in the 2009 retention election, in large part because of his perceived association with Michael Conahan, now charged with masterminding the cash-for-kids scandal. The 1999 segment quoted a candidate who ended up losing her election:

VIRGINIA MURTHA COWLEY: What it has become is the ability to buy the seat. If you can- if you have a half a million dollars, you can basically go out there and get your name on T.V. so many times that you will have bought yourself a job for the rest of your life.

BILL MOYERS: True enough, the winners for the two open seats are the candidates who raised the most money and made the most expensive T.V. commercials. It’s a system that disturbs even the winning media consultant.

This system surely can only further erode the confidence of Luzerne County and Pennsylvania citizens who have seen first-hand the corrosive influence of money on judicial conduct.

The full transcript of Friday’s show is available in three parts, here, here and here. The latest numbers in Pennsylvania, which the show’s website attributed to Pennsylvanians for Modern Courts, reflect that a record amount of money was spent on the latest race for a seat on the Commonwealth’s highest court.

The show helps make apparent why electing judges is so problematic: unlike other public officials, judges have to resolve disputes between parties on a daily basis. The expectation is that the judges will be completely impartial and fair to both sides. But when they are forced to raise money to get their seats, and when that money inevitably comes in from the very parties that appear before those judges, the public has a hard time believing that the justice being delivered is not influenced by that money.

The solution other states have found, that we believe Pennsylvania needs to implement, is to select judges based on merit, not fundraising abilities or other factors unrelated to a candidate’s qualifications as an impartial jurist.

BILL MOYERS: Do you think that [Justice O’Connor’s] idea of merit selection for judges, that somehow the governors of the state, with the help of disinterested parties, would pick a group of candidates for the State Supreme Court, do you think merit selection is viable?

JEFFREY TOOBIN: Yeah. And it works well in a lot of states. . . . Nothing’s perfect. But when you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.

The problem is not that voters can’t make good decisions; it’s that the process of electing judges is a system that values fundraising and campaigning above qualifiscations. And in that kind of system, it’s very hard to cut through the rhetoric and soundbytes to get the information you need to make a good decision.

Pennsylvania Governor Ed Rendell began a 3-month tour of the state in which he is calling for sweeping changes, intended to overhaul the notoriously broken political process in the state.  Appropriately, the Governor began his education campaign in Luzerne County, where judicial corruption of an unprecedented scale has damaged the public’s confidence in government at all levels, but particularly in the judiciary.

One of the three core-changes the Governor is targeting to purge corruption from state politics is to switch to merit selection of appellate court judges. Speaking to various audiences, including the Wilkes-Barre Times Leader editorial board, the Scranton Chamber of Commerce, and students at Wilkes University, the Governor highlighted two of the serious flaws with our current system of judicial selection: confusion in the voting booth, and money. The Times-Leader reported:

‘People don’t have a clue who they are voting for,’ Rendell said. ‘In an exit poll conducted five years ago, voters were asked five minutes after they voted to name any of the judicial candidates they voted for, and 50 percent couldn’t remember one.’”

Rendell also criticized political campaign donations to judges. ‘Who gives money to judicial candidates? It’s lawyers, for the most part,’ he said.”

The antidote the Governor proposed is to put qualified judges on the bench through a system of merit selection, where they will be untainted by the corrupting influence of money that Luzernites are, unfortunately, all too familiar with.

This message was music to the ears of Lynn Marks and Shira Goodman of Pennsylvanians for Modern Courts (PMC), an organization which has long been calling for Pennsylvania to adopt merit selection for the appellate courts. As PMC’s Lynn Marks explained:

‘Merit selection focuses on getting the most qualified candidates on the bench, offers an opportunity for qualified men and women of all backgrounds from all over Pennsylvania to serve and gets judges out of the fundraising business.’”

The other changes proposed in the Governor’s plan are to implement campaign-finance reform for elected politicians to limit the influence of lobbyists on the state’s lawmakers, and to prevent incumbent legislators from maintaining their power through absurd reapportionment of voting districts.

You will recall that in the just-passed race for a vacant seat on the state’s Supreme Court, vast sums of money were spent on negative advertising. According to many commentators, the race was particularly important to the political parties this year because of the reapportionment issue. In a state like ours, where judges hang party labels after their names (we are one of 6 states that elect judges at all levels in partisan elections), the Supreme Court’s role in deciding contested reapportionment questions becomes a political question and Supreme Court elections become tempting targets for the influence of big money.

We are delighted that Governor Rendell is bringing the problems with electing judges front and center, and think there is no better place to launch this message than a county that has felt first-hand what hell can be wrought by judges tainted by the influence of money.

As we reported earlier this month, an editorial in the Lancaster Intelligencer Journal/New Era “salute[d] the effort” to bring Merit Selection to the Pennsylvania appellate courts.  In response, PMC submitted a letter affirming that now is the time to act:

With the scandals in the Luzerne County court system, the continuing flow of special interest money into state court elections, and the likelihood that the U.S. Supreme Court will rule in October (in the Citizens United case) that corporations have a fundamental right to spend freely on state elections, it’s high time for a groundswell of Pennsylvania voices to let our leaders know we want our judges selected by their qualifications, not by a popularity contest and not by a fundraising arms race.

We hope Pennsylvanians will heed the call and make their voices heard.

Paul Capenter of the Allentown Morning Call devoted yesterday’s column to a recap of the judicial scandals in Luzerne County.  Carpenter has strong words for the Pennsylvania judicial system and the Pennsylvania Supreme Court in particular:

The appellate system is a comedy routine over which presides the Pennsylvania Supreme Court, which, among its other scandals, did everything but back-flips to accommodate the crimes of two Luzerne County judges, who took $2.6 million in payoffs to throw hundreds of juveniles into a commercial juvie jail on flimsy grounds.

Carpenter updates his readers on the continuing investigation in Luzerne County and how various other cases are getting reexamined.  He concludes with a thought about one factor contributing to problems in the judicial system — judicial elections:

Someday, all these exciting episodes will end, probably when Pennsylvania enacts merit selection for appellate court judges — instead of letting party bosses pick judicial candidates. Then we’ll have to go back to watching Jerry Springer.

In a commentary piece (subscription required) in the Legal Intelligencer and the Patriot-News, Chief Justice Castille highlights the Court’s dedication to restoring confidence in the justice system following the scandal in Luzerne County.

The Chief Justice writes:

As leader of the Pennsylvania court system, my top goal is for the citizens of this commonwealth to trust their judges and for judges at every level to deserve that trust.  It is of the utmost importance for any individual who faces any judge in a courtroom to have confidence that he or she will be treated fairly, and for all Pennsylvanians to have that same sense of confidence, because a sound court system is essential to our system of government — and to our very freedom.  How do judges earn the confidence of the citizens? We expect judges to be fair and impartial. We expect judges to be unaffected by either side or by outside influence. We expect that judges will not favor the strong over the weak or the rich over the poor. Above all, we expect judges to adhere to their oaths of office.

The Chief Justice goes on to outline steps taken to date to rectify the problems in Luzerne and to restore the public’s confidence.  He notes the work is ongoing and pledges that the Court “will do all in its power to ensure that justice is done fairly and honestly in Luzerne County and in every courtroom in this commonwealth every day.”

This is good news, and we applaud the Chief Justice and the entire Court for acknowledging that even an isolated scandal taints the entire judiciary.  The Chief Justice’s quote from Henry Ward Beecher highlights this: “‘Take all of the robes of all of the good judges who have ever lived on the face of the earth and they would not be large enough to cover the iniquity of one corrupt judge.’”

Right now, a major judicial scandal continues to unfold in Luzerne County, PA where two judges have pleaded guilty to federal charges stemming from their having allegedly taken money to divert many juvenile offenders to a specific detention facility.  Other court officials have also been implicated, and the investigation is ongoing. Earlier this week, the Times Leader examined the sources of campaign contributions to the two judges at the center of the scandal.

The report reveals some troubling information: Although one of the judges, Michael Conahan, claimed to be campaigning without taking money from lawyers, when he ran for retention ten years later, he retired all his original campaign debt in large part from contributions by lawyers. This despite his earlier pledge that:

“This will guarantee that there will not even be the chance that when I am hearing a case, my mind could in any way be clouded between the arguments of a lawyer who contributed to my campaign and perhaps an opposing one who didn’t.”

Conahan’s counterpart, Mark Ciavarella also is without campaign debt, due in large part to contributions by lawyers and law firms.

It’s no surprise that lawyers and law firms are big contributors to judicial elections, but it is of great concern to those who believe that perception is important.  Conahan himself identified the potential problems arising from lawyer contributions to judicial campaigns.  Recent surveys and studies make clear that the public is worried about the impact of campaign contributions on judicial decision-making.  Those worries undermine public confidence in the fairness of our courts.  And that’s dangerous for all of us.

The article concludes with a suggestion from some lawyers at a firm that contributed heavily to the Conahan campaign:

Representatives of [the firm] said lawyers are tapped for donations in many campaigns, not just judicial ones. The lawyers say a switch to merit selection of judges would eliminate the demand for contributions in expensive judicial races.

That makes sense — it’s time to get judges out of the fundraising business altogether.

An editorial in the Allentown Morning Call, inspired by the judicial scandal in Luzerne County, urges Pennsylvania to adopt a Merit Selection system.  The Luzerne scandal, which continues to broaden in scope, involves two state court judges pleading guilty to federal charges related to their allegedly receiving kickbacks for referring juvenile defendants to a particular detention facility.  The case has rocked Luzerne County and the entire state, and the Pennsylvania Supreme Court has taken action to have court operations reviewed and the juvenile cases reexamined.

The editorial lays blame not only at the feet of the judges involved in the scandal, but also argues the state Supreme Court should have intervened earlier.  Observing that redress is difficult, the editorial urges:

[T]here is a long-range reform that holds promise for improving the appellate courts, one that these pages have supported for years: Merit selection, instead of the political election of judges.