AJS reports that in 2008 and 2009, more than two-thirds of the civil cases decided by the Pennsylvania Supreme Court included a litigant, lawyer or law firm who previously had made a campaign contribution to at least one of the elected justices.
Commenting on the report, PMC Executive Director Lynn A. Marks said, “The high price-tag of judicial elections should worry Pennsylvanians. But what is of even greater concern is the source of this money. Judicial candidates receive donations from individuals, lawyers, businesses, unions and other entities that may later appear before them in court.”
In the 2009 Pennsylvania Supreme Court race, two candidates raised and spent almost $4.7 million. This was the most expensive judicial election nationwide for a single seat during this election cycle, and the most expensive ever in Pennsylvania.
AJS is a national nonprofit, nonpartisan organization working to improve the justice system. The organization’s study examined the 112 civil cases decided by the Court in 2008 and 2009 and determined the number of cases in which at least one of the litigants, attorneys, or law firms involved had previously made a contribution to the election campaign of at least one justice.* During the relevant period, six of the seven sitting justices had won their seats in contested elections; the seventh was appointed to fill an interim vacancy.
The degree of overlap between the list of contributors and the list of those appearing before the Court is eye-opening:
- In two-thirds of the cases (67%), at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one justice.
- In nearly half of the cases (46%), a single litigant, lawyer, or law firm had contributed to at least four of the six elected justices’ election campaigns.
AJS further notes that its study “provides only a partial picture of the extent to which money in judicial campaigns has the potential to erode Pennsylvanians’ confidence in their courts. It does not track contributions from PACs other than attorney and law firm PACs.
Non-legal PACs, including political party PACs, provided nearly $2.9 million, or 36 percent, of the campaign dollars raised by the justices serving on the Pennsylvania Supreme Court in 2008 and 2009.”
The AJS study does not attempt to determine whether campaign contributors received more favorable rulings. PMC’s Marks explained, however, that “when one party to a case has contributed to a member of the Court deciding that case, it creates an appearance of influence that causes citizens to doubt the fairness of our judicial system.”
Indeed, the United States Supreme Court held in the 2008 Caperton v. Massey decision that in certain instances the mere appearance of impropriety is enough to violate the due process rights of litigants.
“Pennsylvanians must be confident that they will be afforded the opportunity to present their cases before impartial arbiters. But when judges have little choice except to raise money to campaign to reach the appellate bench, and the natural source for contributions is lawyers, law firms, and organizations with issues likely to reach the court, public confidence in our courts is diminished,” said Marks. “Without public faith in the fairness of the judiciary, the legitimacy of the courts is compromised.”
Legislation is currently pending in the Pennsylvania legislature to amend the constitution to implement Merit Selection for appellate court judges. “Merit Selection takes money out of the selection process and ensures that we select judges based on their qualifications and experience, not the size of campaign war chests,” concluded Marks.