Is New Proposal A Curtain Call for Corruption in State Courts?

Pennsylvania’s judicial elections have been a longstanding, problematic process fueled by corruption and special interests. While most states in the country still rely on some type of election to the high courts, legislators from both sides of the aisle are intent on making sweeping changes to restore the public’s faith in Pennsylvania’s judges. 

Illustration by Don Lee

Illustration by Don Lee

There are few issues Pennsylvania’s Democrats and Republicans often agree upon, but every once in a long while, there’s a problem too obvious to ignore. It’s one that requires the attention of both parties, as well as a single-mindedness to achieve the necessary resolution for the greater good. Unfortunately in this case, it’s a crisis within the state’s court system.

Senators Anthony H. Williams (D-Philadelphia) and Richard Alloway (R-Franklin) have proposed a bill to end Pennsylvania’s judicial elections and replace them with a commission of 15 members. The commission would consist of four members appointed by the governor, four by the General Assembly and the remaining seven as members of the general public. Sen. Williams is the lead sponsor of the bill with Sen. Alloway (also serving as the Vice Chairman of the Senate Law and Justice Committee) backing the proposal.

“As citizens, we have to have utmost confidence in our judiciary, and right now, that’s simply not the case,” Sen. Williams told The Pennsylvania Independent.

According to Pennsylvanians for Modern Courts, state elections are currently held in odd-numbered years to fill vacancies. Appellate court and common pleas court candidates run in partisan elections for 10-year terms, while minor court candidates run in partisan elections for six-year terms. The dominant political parties often endorse certain candidates to run, and for trial judges, a candidate may receive the endorsement of both parties. When a judge’s term is completed, he or she can stand for successive 10-year terms in retention elections – which are nonpartisan and uncontested – up until the mandatory retirement age of 70 years old.

The primary issue with contested elections and the catalyst for Sen. Williams’ proposed bill lies in the financing of judicial candidates’ campaigns. Campaign donors will often appear before the judges they help elect, and this unavoidable conflict blurs the line of impartiality. Special interest groups are also active influencers in judicial elections, funding advertising campaigns and contributing to campaigns. This is especially problematic because there are currently no rules of conduct that require judges to recuse themselves in cases involving campaign contributors.

“Judges are supposed to make decisions based on the facts and the law, not based on how their campaign supporters want them to rule,” Lynn Marks, Executive Director of Pennsylvanians for Modern Courts, told The Pennsylvania Independent this month. “They criss-cross the state raising tons of money, all while promising to be unbiased when they are elected.”

This complication in the judicial process is as far-reaching as its consequences. According to the Brennan Center for Justice at New York University School of Law, a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice, a total of $38.4 million was spent nationally on state high court elections in 2009-10. This figure is slightly less than the last non-presidential election cycle in 2005-06, but it managed to be the costliest for television advertising. Roughly $16.8 million was spent on television advertising campaigns, and outside forces accounted for nearly 30 percent of all money spent – a number far exceeding four years prior.

Pennsylvania is already battling one instance of alleged corruption in its high courts. The trial of suspended Supreme Court Justice Joan Orie Melvin is underway in Pittsburgh where she faces seven counts related to her alleged use of public resources during her 2009 campaign that eventually culminated in her election. Sen. Jane Orie, her sister, was convicted of 14 counts of theft of services, conflict of interest and forgery last March relating to the incident. She is now serving her sentence of up to ten years in state prison.

Adding fuel to the already growing fire, Justice Orie Melvin’s attorneys asked her colleagues on the court to dismiss her charges. She filed a petition earlier this month requesting the remaining six jurists on the high court block her trial and toss out the charges leveled against her. In its 16-page filing, the defense wrote, “Immediate action by this court is necessary to enforce the separation of powers and compel the dismissal of the constitutionally impermissible charges.” The motion was declined.

Pennsylvania seems to be one of the few states willing to definitively tackle these issues of corruption, but the road ahead will be long and hard. If the bill is successful, the state constitution will have to be amended in order to implement a new merit selection process. Such sweeping changes would require approval by the House and Senate in consecutive legislative session, which can be an involved and arduous process in and of itself. If that is achieved, it will then be introduced to voters in a statewide referendum. Best case scenario, the proposal would reach voters by May 2015.

It’s an unprecedented time in state’s legal system. The charges against Justice Orie Melvin have turned a spotlight on the corruption born of judicial elections, and the merit selection bill could revolutionize the Pennsylvania judiciary. The bill’s proposed Appellate Court Nominating Commission would be designed with the express purpose of thoroughly assessing judicial candidates, carefully assembling a list of the most qualified candidates, and then presenting them to the governor. The governor would then make his choices from that list of prospective candidates, and those selections would then seek Senate confirmation. After serving an abbreviated initial term, judges will then stand before voters in a nonpartisan, uncontested retention election.

If successful, the bill’s outcome would ensure the judges serving on the bench would be the most qualified candidate, not simply the best campaigner. It could serve as a model to the nation, inspiring other states to follow suit and amend their own troubled judicial elections. And in its most basic form, it could offer peace of mind to anyone stepping foot into a Pennsylvania court room.

MORE: Big changes coming to the state’s supreme court

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