By Leo Strupczewski
The Legal Intelligencer
At the end of an April press conference called by Gov. Edward G. Rendell to discuss why Pennsylvania's legislators should join the movement to abandon the practice of electing appellate judges, there sat together a collection of words and phrases long used by those championing a change to an appointive process.
"Appearance of impropriety," "crisis of confidence," "special interests."
Each phrase was delivered by the governor with a specific purpose. The public, he said, no longer believes in the judicial system and a "confluence" of recent events — the Luzerne County judicial corruption scandal, the recent state Supreme Court election and the indictment of state Sen. Jane Clare Orie, R-Allegheny — all pointed to a need for change.
"This is long overdue in Pennsylvania in my judgment," Rendell said. "We've got to do this for a whole host of reasons."
And so it continues.
For nearly 20 years, "merit selection" has been a front-burner reform issue in Pennsylvania. Supporters have tweaked their arguments over the years in response to current events, but they've largely kept the reasoning the same.
Judges should be treated differently than politicians, proponents of the change say, because there should be no room for an appearance that a judge is beholden to anyone — or anything — but the law.
At Rendell's recent press conference, the governor tailored that argument to include the fact that spending on state Supreme Court campaigns has exploded from $2.1 million in 2001 to nearly $4.7 million in 2009.
"This is a great opportunity [for a change to merit selection]," said Francis P. Devine III, a longtime supporter of merit selection and a partner at Pepper Hamilton in Philadelphia. "But if you don't take advantage of this, it's hard to imagine what's going to stir people up."
And that, it seems, is the reality of the situation.
Current events have again brought the merit selection issue to the forefront of Pennsylvania politics, but the respective bills in the House and Senate haven't moved out of committee in nearly a year. And they don't appear to be going anywhere soon.
To declare merit selection as dead, though, seems like a premature assessment.
For one, proponents may soon find support from an unlikely source — trial lawyers.
Mark Phenicie, legislative counsel for the Pennsylvania Association for Justice, said there are a "significant number" of PAJ members who are in favor of the appointive process.
In fact, the association may revisit a 10-year-old board of governor's resolution supporting judicial elections this summer, Phenicie said.
The Long Road to Change
Rendell, at the beginning of his press conference last month, called his support for the legislation "strong."
For his most timely argument, he turned to Pittsburgh, where Orie and one of her sisters face charges she used legislative resources to aid several campaign efforts, including those of the recently elected state Supreme Court justice, Joan Orie Melvin, another of Orie's sisters.
"These allegations could never have been raised if we didn't have the elective system, if it wasn't so important to raise money and reach out to political people all over the state," Rendell said. "It has cast a pall on our appellate judiciary and called into question the service of Justice Orie Melvin and it's something that should never have occurred."
He noted, though, that the process for switching the systems is long — something that won't be completed until after he's gone from office.
Because a change to merit selection would require a change to the constitution, the pending bills need bicameral support in two consecutive sessions before being put to a voter referendum.
If that doesn't happen, the two-session process would need to begin anew.
The Legislature is in the second year of its session, though, and a failure to pass the bill before the session ends would push the process back by at least a year.
How long the Legislature actually has to pass the bills also contains a bit of confusion. Some people believe the constitution requires a three-month buffer on constitutional amendment votes before general elections, meaning both houses have until mid-July to pass their respective bills, and others believe the three-month rule is only applicable to a second session passage.
Regardless, there's a sense of urgency.
"We ought to vote on this stuff," Rendell said. "If the Senate or House want to do it, let's do it. If they don't want to do it, they should let the public know why they don't want to do it. But these bills should not languish. They're too important."
Lynn Marks, executive director of Pennsylvanians for Modern Courts, said the organization's current focus is seeing that the House bill is brought up for a vote at a judiciary committee meeting.A successful vote in committee would move the bill to the House floor, Marks said. It would only end up in the Senate after passage in the House.
Marks, along with PMC's associate director, Shira Goodman, said she's "cautiously optimistic" the bill has enough supporters in committee to pass it along to the entire House.
State Rep. Josh Shapiro, D-Montgomery, said he's not sure that's the case.
A member of the House Judiciary Committee, Shapiro chaired a hearing on the bill over the winter.
"I think we demonstrated we're making progress, but you need the votes to pass it," said Shapiro, a supporter of the bill. "I don't think we're quite there yet. We're making progress, we've got a lot of forward momentum, but we don't have the votes yet to pass it."
Asked if that's something that could be done by the end of the session, Shapiro said that would "require a lot of pieces to fall into place."
But one person — state Rep. Thomas R. Caltagirone, D-Berks — has the ability to actually make a vote happen.
Those involved in the process have said Caltagirone, the majority chairman of the House Judiciary Committee, has vowed not to let the House version of the bill go to a committee vote.
Those sources did not make it clear why Caltagirone was opposed to scheduling the bill for a vote and Caltagirone did not respond to interview requests.
Marks and Goodman said they've not personally met with the committee chairman in some time, but that people with whom PMC is working have.
"We certainly would hope he would do it," Marks said of scheduling a voting meeting for the bill this session.
Phenicie, of the PAJ, said any expectation that the bills could pass this session is "totally unrealistic."
With little time and a looming budget battle, it's tough to imagine merit selection pushing its way to the top of the legislative radar screen, Phenicie said.
Further, he said, the Legislature will likely need to reach a consensus on the language of the bills. And that probably won't happen overnight.
"This place operates very slow," Phenicie said. "This is a major change."
Been Here Before
Backing up their argument for a vote, Marks and Goodman said they welcomed a debate on the issue in the Legislature and that support for merit selection is at its strongest since the days following the Rolf Larsen scandal.
With court-related headlines dominating recent news cycles, the movement has been "gaining momentum steadily," Goodman said.
While that's obviously a positive sign for those leading the movement, it may also present a potential pitfall.
"There are moments that matter more than others," said G. Terry Madonna, a political scientist at Franklin & Marshall College in Lancaster. "We're probably in a moment, post-pay hike and in midst of Bonusgate, with reform in the air. It's probably the best chance merit selection is going to get."
That chance, though, isn't guaranteed to last.
If the bills flounder in the committees long enough, Madonna said, there's a danger the movement can lose momentum in the Legislature and fall by the wayside.
But even if the bills make it to the General Assembly as a whole, it still won't be an easy sell, Madonna said.
Madonna, who is in favor of an appointive system, said he thinks legislators have historically given the issue "lip service."
"I've just found that there's always been some reason (not to favor merit selection)," Madonna said of the Legislature's perspective. "It's never been given what I would call overly serious consideration."
A budget battle, expected to be as bad — if not worse — than last year's still looms, there's a lack of public pressure on lawmakers and Rendell's "clout is on the wane," Madonna said.
Besides, he added, there's a reason the governor would have waited until the end of his second term to raise the issue he first mentioned in his second inaugural address.
Though supportive of the merit selection movement, it may not be something for which Rendell wanted to tap his political capital, Madonna said.
"You run into a priority problem," Madonna said of a governor's agenda. "They have things that they have a greater emphasis and a higher priority on."
Reason For Optimism?
Like many other long-term reform efforts, the merit selection cause "ebbs and flows" with the collective energy of the people behind effort, said Devine, the attorney at Pepper Hamilton.
Because the Legislature has historically failed to put the issue at the top of the priority list, the effort to cause reform has been "frustrating," Devine said.
"It's been a long slog," Devine said. "People have been very involved 15 years ago and less eight years ago. New people sometimes come on board and take their places. Sometimes, they get frustrated. Sometimes, they move on to something else."
But that hasn't stopped the proponents from remaining optimistic.
Madonna said a new governor with a strong reform agenda may have enough juice to push through merit selection.
And Shapiro, who appeared alongside Rendell at the April press conference to support the bill, said the coalition of supporters has grown to include business and religious organizations and other areas of the public.
"The more people that are engaged and supportive of this bill, the better our chance of passage," Shapiro said. "I want to see this get done as soon as possible. But I've also learned that in this business, patience is a virtue and you have to continue to press your case. Sometimes progress takes longer than we might like, but we have to remain committed and vigilant."
Lawrence J. Beaser, a partner at Blank Rome in Philadelphia and former chancellor of the Philadelphia Bar Association who helped draft the merit selection legislation, called now a time to "push for change."
If the bills die in committee, though, that doesn't mean merit selection proponents have missed their chance, Beaser said.
Judicial scandals and big money campaigns continue to offer proponents timely arguments, Beaser said.
"We've had a lot of 'best chances,' we've had a lot of issues," he said. "The truth is, the problems keep getting worse."
"This is long overdue in Pennsylvania in my judgment," Rendell said. "We've got to do this for a whole host of reasons."
And so it continues.
For nearly 20 years, "merit selection" has been a front-burner reform issue in Pennsylvania. Supporters have tweaked their arguments over the years in response to current events, but they've largely kept the reasoning the same.
Judges should be treated differently than politicians, proponents of the change say, because there should be no room for an appearance that a judge is beholden to anyone — or anything — but the law.
At Rendell's recent press conference, the governor tailored that argument to include the fact that spending on state Supreme Court campaigns has exploded from $2.1 million in 2001 to nearly $4.7 million in 2009.
"This is a great opportunity [for a change to merit selection]," said Francis P. Devine III, a longtime supporter of merit selection and a partner at Pepper Hamilton in Philadelphia. "But if you don't take advantage of this, it's hard to imagine what's going to stir people up."
And that, it seems, is the reality of the situation.
Current events have again brought the merit selection issue to the forefront of Pennsylvania politics, but the respective bills in the House and Senate haven't moved out of committee in nearly a year. And they don't appear to be going anywhere soon.
To declare merit selection as dead, though, seems like a premature assessment.
For one, proponents may soon find support from an unlikely source — trial lawyers.
Mark Phenicie, legislative counsel for the Pennsylvania Association for Justice, said there are a "significant number" of PAJ members who are in favor of the appointive process.
In fact, the association may revisit a 10-year-old board of governor's resolution supporting judicial elections this summer, Phenicie said.
The Long Road to Change
Rendell, at the beginning of his press conference last month, called his support for the legislation "strong."
For his most timely argument, he turned to Pittsburgh, where Orie and one of her sisters face charges she used legislative resources to aid several campaign efforts, including those of the recently elected state Supreme Court justice, Joan Orie Melvin, another of Orie's sisters.
"These allegations could never have been raised if we didn't have the elective system, if it wasn't so important to raise money and reach out to political people all over the state," Rendell said. "It has cast a pall on our appellate judiciary and called into question the service of Justice Orie Melvin and it's something that should never have occurred."
He noted, though, that the process for switching the systems is long — something that won't be completed until after he's gone from office.
Because a change to merit selection would require a change to the constitution, the pending bills need bicameral support in two consecutive sessions before being put to a voter referendum.
If that doesn't happen, the two-session process would need to begin anew.
The Legislature is in the second year of its session, though, and a failure to pass the bill before the session ends would push the process back by at least a year.
How long the Legislature actually has to pass the bills also contains a bit of confusion. Some people believe the constitution requires a three-month buffer on constitutional amendment votes before general elections, meaning both houses have until mid-July to pass their respective bills, and others believe the three-month rule is only applicable to a second session passage.
Regardless, there's a sense of urgency.
"We ought to vote on this stuff," Rendell said. "If the Senate or House want to do it, let's do it. If they don't want to do it, they should let the public know why they don't want to do it. But these bills should not languish. They're too important."
Lynn Marks, executive director of Pennsylvanians for Modern Courts, said the organization's current focus is seeing that the House bill is brought up for a vote at a judiciary committee meeting.A successful vote in committee would move the bill to the House floor, Marks said. It would only end up in the Senate after passage in the House.
Marks, along with PMC's associate director, Shira Goodman, said she's "cautiously optimistic" the bill has enough supporters in committee to pass it along to the entire House.
State Rep. Josh Shapiro, D-Montgomery, said he's not sure that's the case.
A member of the House Judiciary Committee, Shapiro chaired a hearing on the bill over the winter.
"I think we demonstrated we're making progress, but you need the votes to pass it," said Shapiro, a supporter of the bill. "I don't think we're quite there yet. We're making progress, we've got a lot of forward momentum, but we don't have the votes yet to pass it."
Asked if that's something that could be done by the end of the session, Shapiro said that would "require a lot of pieces to fall into place."
But one person — state Rep. Thomas R. Caltagirone, D-Berks — has the ability to actually make a vote happen.
Those involved in the process have said Caltagirone, the majority chairman of the House Judiciary Committee, has vowed not to let the House version of the bill go to a committee vote.
Those sources did not make it clear why Caltagirone was opposed to scheduling the bill for a vote and Caltagirone did not respond to interview requests.
Marks and Goodman said they've not personally met with the committee chairman in some time, but that people with whom PMC is working have.
"We certainly would hope he would do it," Marks said of scheduling a voting meeting for the bill this session.
Phenicie, of the PAJ, said any expectation that the bills could pass this session is "totally unrealistic."
With little time and a looming budget battle, it's tough to imagine merit selection pushing its way to the top of the legislative radar screen, Phenicie said.
Further, he said, the Legislature will likely need to reach a consensus on the language of the bills. And that probably won't happen overnight.
"This place operates very slow," Phenicie said. "This is a major change."
Been Here Before
Backing up their argument for a vote, Marks and Goodman said they welcomed a debate on the issue in the Legislature and that support for merit selection is at its strongest since the days following the Rolf Larsen scandal.
With court-related headlines dominating recent news cycles, the movement has been "gaining momentum steadily," Goodman said.
While that's obviously a positive sign for those leading the movement, it may also present a potential pitfall.
"There are moments that matter more than others," said G. Terry Madonna, a political scientist at Franklin & Marshall College in Lancaster. "We're probably in a moment, post-pay hike and in midst of Bonusgate, with reform in the air. It's probably the best chance merit selection is going to get."
That chance, though, isn't guaranteed to last.
If the bills flounder in the committees long enough, Madonna said, there's a danger the movement can lose momentum in the Legislature and fall by the wayside.
But even if the bills make it to the General Assembly as a whole, it still won't be an easy sell, Madonna said.
Madonna, who is in favor of an appointive system, said he thinks legislators have historically given the issue "lip service."
"I've just found that there's always been some reason (not to favor merit selection)," Madonna said of the Legislature's perspective. "It's never been given what I would call overly serious consideration."
A budget battle, expected to be as bad — if not worse — than last year's still looms, there's a lack of public pressure on lawmakers and Rendell's "clout is on the wane," Madonna said.
Besides, he added, there's a reason the governor would have waited until the end of his second term to raise the issue he first mentioned in his second inaugural address.
Though supportive of the merit selection movement, it may not be something for which Rendell wanted to tap his political capital, Madonna said.
"You run into a priority problem," Madonna said of a governor's agenda. "They have things that they have a greater emphasis and a higher priority on."
Reason For Optimism?
Like many other long-term reform efforts, the merit selection cause "ebbs and flows" with the collective energy of the people behind effort, said Devine, the attorney at Pepper Hamilton.
Because the Legislature has historically failed to put the issue at the top of the priority list, the effort to cause reform has been "frustrating," Devine said.
"It's been a long slog," Devine said. "People have been very involved 15 years ago and less eight years ago. New people sometimes come on board and take their places. Sometimes, they get frustrated. Sometimes, they move on to something else."
But that hasn't stopped the proponents from remaining optimistic.
Madonna said a new governor with a strong reform agenda may have enough juice to push through merit selection.
And Shapiro, who appeared alongside Rendell at the April press conference to support the bill, said the coalition of supporters has grown to include business and religious organizations and other areas of the public.
"The more people that are engaged and supportive of this bill, the better our chance of passage," Shapiro said. "I want to see this get done as soon as possible. But I've also learned that in this business, patience is a virtue and you have to continue to press your case. Sometimes progress takes longer than we might like, but we have to remain committed and vigilant."
Lawrence J. Beaser, a partner at Blank Rome in Philadelphia and former chancellor of the Philadelphia Bar Association who helped draft the merit selection legislation, called now a time to "push for change."
If the bills die in committee, though, that doesn't mean merit selection proponents have missed their chance, Beaser said.
Judicial scandals and big money campaigns continue to offer proponents timely arguments, Beaser said.
"We've had a lot of 'best chances,' we've had a lot of issues," he said. "The truth is, the problems keep getting worse."