judgesonmerit.org

Election season brings campaign mishaps, and judicial elections are no exception. Recently, three judges, two from Ohio and one from Texas, have been accused of violating campaign laws.

Ohio Common Pleas Court candidate, Judge Kathryn Michael, was fined for accepting an improper campaign donation from her ex-husband and for improper wording on her campaign material. The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline conducted a

hearing and concluded “by clear and convincing evidence” that the judge had violated the Ohio Code of Judicial Conduct. Michael had previously repaid the $25,000 contribution from her ex-husband and corrected her misleading campaign materials. As part of the Board’s ruling, she was required to pay $2,500 in attorney fees and court costs associated with the disciplinary complaint.

That’s the tag line for one of the candidates in Ohio’s Democratic primary for the chance to challenge incumbent Supreme Court Justice Robert Cupp.  According to the CantonRep.com, both Democrats believe the Ohio Supreme Court has  “a trust problem.”  Candidate William O’Neill, a former appeals court judge, says “‘Money and judges don’t mix,’” and pledges not to accept money from anybody.  His opponent is Fanon Rucker, a Hamilton County Municipal Court Judge.

We think the candidates have tapped into the important public perception that campaign contributions influence judicial decision-making and the accompanying lack of confidence in the courts.  O’Neill’s solution — “no money from nobody” — is an interesting one, and we think there’s a way to apply it across the board.  Get judges out of the fundraising business once and for all.  The way to do that — stop using expensive elections to pick judges, and use Merit Selection, which stops the flow of money to judicial candidates.

In Miamisburg, Ohio, the race to replace retiring municipal Judge Robert Messham is getting ugly. Partisan bickering and accusations of misconduct are making headlines. The twist? The candidates are both on the same side, at least politically. Candidates Robert Rettich and John Kolberg are locked in an increasingly messy squabble over the Republican nomination. The Dayton Daily News explains the situation:

Kolberg, who has served as magistrate at the court for 19 years and as an acting judge since 2002, was recommended over Rettich by the Montgomery County Republican Party Screening Committee in January.

But on April 14, the precinct captains in the court’s jurisdiction voted 23-4 to endorse Rettich.

Former Miami Twp. Trustee Dave Coffey, who is helping Kolberg’s campaign, said the April meeting was an “ambush.” Instead of focusing on judicial qualifications, Rettich supporters questioned Kolberg’s legitimacy as a Republican, Coffey said.

In addition to the political infighting, there are allegations that a Rettich supporter tried to get the retiring judge to convince Kolberg to withdraw, by threatening the jobs of current court employees.

Messham told the Dayton Daily News that Miami Twp. Trustee Deborah Preston told him April 16 that if Kolberg did not withdraw from the race, Rettich would fire all current court employees once he is elected.

Preston also told Messham that, if he brokered the deal to get Kolberg out of the race, he would be allowed to serve as a visiting judge at the Miamisburg court after he retires, Messham said.

Messharm said Preston never mentioned Rettich’s name, but said, “Bob, I’m only the messenger.”

Why is the endorsement of the County Republican Party causing such a scrap? Because of cold political reality; without a party endorsement, most judicial candidates in partisan races have a vanishingly small chance of reaching the bench. Endorsed candidates have a huge advantage in a party primary. If a candidate who fails to win a primary even has the option to run as an independent, he or she will be facing opponents who have the benefit of their parties’ assistance with campaigning and raising funds.

In a partisan judicial election, the endorsement of a party is invaluable. Party politics become more important than the experience and ability of the candidates. Qualified judges can reach the bench only if they’re also sufficiently skilled politicians. They must navigate the often contentious currents of party endorsements, and the often confusing ethical rules that try to balance the need for political campaigning against their impartiality on issues they might rule on once they’re elected.

We believe that Pennsylvanians deserve a system that gets appellate judges out of the business of raising funds and campaigning for votes. We think that skilled judges should be able to reach the Pennsylvania appellate bench on the strength of their experience, their ability, and their knowledge of the law, not their skill at winning political points. That’s why we support the switch to Merit Selection of appellate judges in Pennsylvania.

An editorial in the Youngstown News (Ohio) calls for a meaningful public dialogue about whether to change to Merit Selection.  Citing the recent New Politics of Judicial Elections report, the editorial observes:

The issue of money and the courts is not new. . . .

But the recent U.S. Supreme Court ruling that threw open the floodgates to corporations and labor unions to contribute to political candidates is a game changer.

Can the public be assured the courts will remain fair and independent when money i

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s flowing like water?

The editorial notes that in the past, Merit Selection has not passed in Ohio, but it argues that changed circumstances demand a new look.  Here is the call to action:

There is no doubt that the current money-based system of filling state supreme court seats has fed public cynicism and distrust of the judicial system. It’s time — again — for an intelligent, apolitical, public discussion.

That sounds like a very good prescription for Pennsylvania as well. We hope Pennsylvanians will have the chance to have such a discussion about Merit Selection of appellate court judges.

This is a big judicial election year for Ohio, and trouble is brewing already. Like Pennsylvania, Ohio limits the political and fundraising activities of judicial candidates.  But the Columbus Dispatch reports that the candidates for  Chief Justice are trading allegations of unethical campaign conduct.

The Republican Party alleges that Chief Justice Eric Brown improperly solicited campaign contributions.  The Democratic Party alleges that Brown’s challenger Justice Maureen O’Connor, improperly endorsed another judicial candi

date.  The Democratic Party also alleges that another sitting Justice, Justice Judith Ann Lanzinger, a Republican up for re-election, also violated the rule against endorsing other candidates.

Aren’t we getting tired of these stories?  These allegations, coupled with expensive elections funded by lawyers, law firms and organizations that frequently litigate in the state courts, makes one wonder why states continue to elect judges.  It seems that money problems and political entanglements are the  inevitable partners of judicial elections.

We need a system that gets judges out of the fundraising business and limits partisan political activity.  Merit Selection is such a system.

In our neighboring state of Ohio, Supreme Court justices are elected into office.  And with the Supreme Court making as many important decisions affecting political matters as it does, reports the Dayton Daily News, the design of the system itself creates a problem:

Some court observers say bias is inevitable when justices are elected by popular vote and receive campaign contributions that can run into the millions.

The retiring Chief Justice, Thomas Moyer, believes in the integrity of his Court and its decisions, but he acknowledged the public perception that “justice is for sale.”  The article quotes two well-known studies demonstrating that the perception is indeed wide-spread:

A 2008 American Bar Association poll found 79 percent of adults believed judges should not be allowed to accept money from “special interests.”

A 2002 poll sponsored by the Ohio League of Women Voters . . . found 83 percent of Ohio registered voters believe campaign contributions influence judges either to a great extent or somewhat.”

This trend is typical of a state that has popular elections of judges, especially one like Ohio, which from 1998-2008 spent over $20 million on judicial campaigns.  The paper cited Ohio as being the second largest spender on judicial elections in the last decade after Alabama (with $40.9 million raised).  Pennsylvania’s 2007 contest alone involved over $7.8 million in direct contributions to judicial candidates.

To combat the popular perception that judicial independence is threatened, Chief Justice Moyer is organizing a conference, along with the Ohio State Bar Association and the League of Women Voters of Ohio Education Fund, which he hopes will raise momentum for a change to Ohio’s electoral system.  We hope Justice O’Connor, who will be participating in the conference and is a fierce advocate of Merit Selection, can convince the state of the benefits of choosing judges on merit.

Ohio Chief Justice Thomas Moyer spoke out strongly against the poisonous influence of money in judicial elections during a recent address to the Columbus Metropolitan Club.  Dispatch Politics, a division of the Columbus Dispatch, reports that Chief Justice Moyer urged: “‘We must reduce the role of fundraising in judicial campaigns . . . It’s corrosive.’”

He further noted that the money problem undermines confidence in the judiciary and courts across the board, noting that “polls have shown that most people — and even many judges — believe that rulings are influenced by campaign contributions.” This is not new information, but when the Chief Justice takes note of this data, people should listen carefully.

Chief Justice Moyer promoted a Merit Selection system in which the Governor selects a candidate from a field of three recommended by a nominating commission.  Judges selected this way would stand in uncontested retention elections.

We hope that people in Ohio — and Pennsylvania — will heed Chief Justice Moyer’s call for reform.

In a letter to the Columbus Dispatch, an Ohio lawyer describes his disillusionment with the current system of electing judges and his belief in the need for serious reform:

[T]he election of judges does not serve our state, citizenry or the judicial process. I have no concern as to the political affiliation of judges if they apply the law as it is codified or legislated. As a practicing lawyer, I want a judge who is not only fair and impartial, but who is more intelligent than I am, who is more tempered than I am and who will work as hard as I do.

The writer emphasizes the need for qualified, experienced, indepedent jurists and explains why elections are not the best way to find them.  He praises Merit Selection as the answer: “A bipartisan merit-selection process is the only answer to address the critical need for judicial competency.”

Just last month, we reported that the Ohio Supreme Court amended the rules governing judicial conduct to permit judicial candidates to announce their political affiliations to the voters. Well, the Court has now reversed course and reinstated the rule barring judicial candidates from announcing their political affiliation after the primary election.

According to the Cleveland Plain Dealer,  although the initial rule change followed public comment and was publicy announced, this time, the Court made secretly and did not publicize the reinstatement of the prohibition for nearly a week:  “Two weeks after passing a rule that would allow judicial candidates to align themselves with political parties for general elections, the Ohio Supreme Court without explanation or public notice has reversed its decision.”

We will keep our eyes open for more information about what led to the Court’s decision to reinstate the old rule.

Yesterday, the Ohio Supreme Court changed one of the rules governing its judicial elections.  According to an Associated Press report on Ohio.com, judicial candidates may now make public their political party affiliations.  The rule change is part of a new Code of Judicial Conduct going into effect March 1, 2009.  There had been a ban in place on such direct advertising of party affiliation since 1995, although the rule had not been enforced since it was challenged in 2004.

Why make the change? “Ohio Supreme Court assistant administrator Rick Dove says the rule is being changed because candidates were finding ways around it. Plus, he says the court wanted to make the relationship between judicial candidates and political parties more transparent.”

This is yet another sign that judicial elections are becoming more like elections for other public offices, despite the unique role judges play in our government.  If judges really are different, shouldn’t we treat them differently from the get-go, including how they get to be judges?