Despite Flaws, Study Stokes Fire for Judicial Election Issue

The Legal Intelligencer
By Leo Srupczewski
March 23, 2010

Of the civil cases decided by the state Supreme Court in 2008 and 2009, more than half the attorneys, litigants or law firms involved in the cases made campaign contributions of at least $1,000 to at least one of the justices, according to a new, revised study by a national court-watching organization.

Released March 17, the American Judicature Society’s study is used by the AJS and Pennsylvanians for Modern Courts as an argument for abandoning partisan elections of appellate judges in favor of an appointive process.

Malia Reddick, the study’s author and the director of Research and Programs at AJS, wrote that the analysis is not an attempt to prove campaign contributions influence the court’s decisions.

“But it does suggest that citizens and litigants may have reason to question the fairness and impartiality of the court’s decisions based on the frequency with which contributors to the justices’ election campaigns later appear before them,” Reddick said.

According to Reddick, the study did not include amicus curiae in its tally nor did it include contributions in cases where attorneys, litigants or law firms made contributions to justices but those justices did not participate in the decision.

Using those parameters, the study determined that attorneys, litigants or law firms who contributed to at least one justice were involved in 49 of the 82 cases decided during 2008 and 2009 — a rate of 60 percent.

In 21 of the 82 cases, or 26 percent of the time, a contribution had been made by more than one of the parties in the case, according to the study.

The study also determined that 32 percent of the time, or in 26 out of the 82 cases, a single litigant, attorney or law firm donated to at least for off the six justices who had run for their seat. Justice Jane Cutler Greenspan, who was a member of the court in 2008 and 2009, was appointed to the bench.

According to Reddick, those who made multiple contributions were usually large law firms.

“I think it gives you pause,” Shira Goodman, associate director of Pennsylvanians for Modern Courts, said of the study. “How would you feel if you go to court and know someone on the other side donated to one of the justices? I might be concerned about that. We have a very small, kind of insular bar here. When you add the money in, it just doesn’t look good.”

The study was originally released earlier this month but was retracted and revised after Pennsylvania Law Weekly discovered the methodology behind the study was flawed and brought it to the society’s attention.

Still, the study was out long enough for people to notice. And it’s only added to a conversation that seems to have been rekindled since the U.S. Supreme Court ruled in a June decision, Caperton v. Massey Coal Co., that judges are required to recuse themselves from a case if one of the parties before him or her made a “significant or disproportionate” campaign contribution.

Though the decision did not create a bright-line rule for recusal, it’s had an effect in Pennsylvania, once again raising the issue of scrapping the state’s current system of electing judges.

In the same week the U.S. Supreme Court announced Caperton, for example, the General Assembly reintroduced bicameral, bipartisan legislation that would create an appointive system for appellate judges. And in November, a few months after a state Supreme Court campaign in which Jack A. Panella and Joan Orie Melvin sparred over who was spending more money on campaigning, Gov. Edward G. Rendell said he planned to spend his last year pushing for governmental reforms, including “merit selection” for appellate court positions.

The Caperton decision, along with the U.S. Supreme Court’s January decision in Citizens United v. Federal Election Commission, have offered the public “concrete examples” of what could happen if the state’s current system of selecting judges remains, said Shira Goodman, associate director of Pennsylvanians for Modern Courts.

“I think [those events] really did create a moment where people were thinking, ‘Maybe it’s time we started talking about this,'” Goodman said. “It’s not one of those easy, really catchy issues. It’s one that people need to think about and talk about.”

And talk they have.

The state House courts subcommittee in December held a hearing on merit selection, where it heard from the proposal’s advocates and detractors.

And, said Goodman, PMC has had success in the past months talking with legislators who previously wouldn’t meet with them.

But if Pennsylvania legislators are getting serious about doing away with judicial elections — at least at the appellate court level — they need to move fast. Since the switch in systems would require a change to the constitution, the pending bill on merit selection, needs to be moved out of committee and passed in both houses by this summer. If not, the two-session process would need to begin anew.

“We hear that we have some good, building support,” Goodman said. “Some of the caucuses are putting it at a priority. It’s always hard.”

State Sen. Jane Earll, R-Erie, one of the sponsors of the merit selection bill, said she’s “optimistic” the legislation will eventually receive the necessary number of votes, but added she’s not sure if that will occur this session.

She added, though, that “everytime I introduce the bill, it gets a little bit more support.”

The U.S. Supreme Court’s decision in Caperton has brought around additional legislators who have an “open mind” on the issue.

“It’s an uphill battle,” Earll said. “It’s still is a fairly controversial subject and there’s a lot of opposition. I think there are some people who have firm, fixed oppositions. Some legislators who have an open mind and are more concerned about who does the appointing and what that procedure looks like. There is some negotiation going on in terms of that aspect of the bill.”

Cherry Injury Law organization, which consists mainly of trial lawyers, is still opposed to merit selection for judges, but the U.S. Supreme Court’s decisions have given it some pause.

“We have concerns because of that case, which is obvious because of the way contributions can be made,” he said, referring to Caperton.

The ultimate impact of the revised AJS study is uncertain. But one thing that is known is that it does only track how many litigants, attorneys or law firms who contributed to at least one of the justice’s campaigns appeared before the high court in cases that were decided in 2008 and 2009. It does not provide an analysis of how often the justices rule in a contributor’s favor.

Court watchers and stakeholders interviewed by Pennsylvania Law Weekly said that fact — results reached by the court in cases involving lawyer-contributors — matters little. But, depending on who was asked, the answer to “Why?” differed greatly.

Goodman argued that, though she may sound “like an idealist law student,” the courtroom should be fair and balanced.

“You shouldn’t have to worry,” Goodman said. “You don’t have to worry about that in states where judges aren’t elected. You don’t have to worry about that in federal courts. It’s just not even a consideration. Here, it is.”

Goodman said that even if the reality is benign, the fact that political contributions are made can raise suspicion.

“The perception issues are pretty important,” Goodman said. “It should just be removed from the process.”

Michael R. Dimino Sr., a professor at Widener Law in Harrisburg, said that what matters is “how realistic that perception is.”

The public, he said, is often suspicious of government — including the courts — and that even comprehensive campaign finance reforms, dating back to 1971, have been unable to change that.

“It may be the case that people just think all government officials are corrupt to some degree and nothing you do is going to correct that assumption,” Dimino said. “I don’t really know what kind of attitude these reformers think the public is going to adopt once they get their way.”

Dimino, instead, suggests Pennsylvania continues its process of electing judges — at least at the state Supreme Court level.

The justices, he said, have a “tremendous influence on policy” and electing judges allows the public to have a role in looking at the issues that appear before the high court.

“Whether it’s shaping statutes, interpreting common law … they make a tremendous amount of policy,” Dimino said.

The public, then, should have a role in who those justices are, much like its role in electing legislators, Dimino said.

Switching to a merit based system could cause judges to lose a sense of accountability and the public to become “ignorant” of legal issues, Dimino said.

If the concern is the role of money in those elections, Dimino added, there’s a simple solution: limit contributions.

“This is not a new idea,” Dimino said. “This is done.”

Capping contributions at $500 or $1,000 would make any single donation less significant to a judicial candidate’s overall campaign, Dimino said.

“It’s hard to believe that a particular judge would risk his integrity so as to get relatively small additional contributions on the next campaign,” Dimino said. “That’s one way of eliminating the problem.”

In all likelihood, though, judges will continue to rule in the favor of an attorney who happened to contribute to his or her campaign, but that money will likely have nothing to do with it, Dimino said.

There’s a difference, Dimino said, between judges ruling in favor of attorneys because of who they are personally and who they are legally.

If a particular candidates view of the law is known — for example, if a candidate takes an expansive view of insurance policy exclusions – it would follow that attorneys who do insurance defense work may tend to contribute to that candidate’s campaign.

“Why else would someone contribute to a campaign?” Dimino asked. “If I’m going to contribute money to some candidate, I’m not going to distribute my money randomly. I’m going to pick somebody who believes what I believe, the same way I give money to people who are already going to vote the way I’m going to vote. The money will assist them get elected. They’re not going to change the way that person is going to vote.”

He later added: “I just question the degree to which people get all up in arms about this. I don’t think there’s all that much of a potential for judges deciding cases based on how much people contributed to their campaign. I don’t think I have an idealists view, but my vision is a little less cynical than that.”

Attorneys said, research judges’ records and make contribution decisions based on that. Those contributions help, hopefully, get that judge elected.

He, for example, doesn’t remember whose campaign he contributed to last year.

“And it’s my money,” he said.

“Most lawyers will tell you they don’t remember half the people they contributed to,”

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