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Saturday, November 05, 2005

Courts - Retention vote for Pennsylvania justices becomes a battleground

Two Pennsylvania Supreme Court justices are up for retention next week and there are many newspaper stories arguing that they should not be retained. Why? Because, it is claimed, they have not abided by the "checks and balances" inherent in the separation of powers which would enable them to throw out the Pennsylvania legislature's pay "grab" bill; instead, they have apparently bowed (or it is anticipated that they will bow) to the theory of "legislative discretion" or "legislative prerogative."[*] At least, that is what I get from these stories Howard Bashman linked to in his blog, How Appealing, yesterday. Remember, Bashman is based in Philadelphia.

Here are some quotes from an editorial in The Harrisburg Patriot-News:

State Supreme Court Justices Russell Nigro and Sandra New man, who have served 10 years on the state's highest court and face a "yes" or "no" retention vote on Tuesday, have let the people down.

We don't mean to suggest that they are bad jurists. Quite the contrary. By every account, they are honest, hard-working and quality judges. Nevertheless, they fundamentally failed in the performance of their duties by giving the Legislature a pass when it abridged or ran roughshod over constitutional processes.

Last July's early-morning legislative pay increase has focused an unusual degree of attention on the judicial retention vote, which rarely ever stirs much interest. But if the pay grab pushed Nigro and Newman into the spotlight, there is a much broader and ultimately more important is sue at stake in this vote. And that is whether this commonwealth is going to have a Supreme Court that respects the separation of powers and enforces the checks and balances that are at the heart of a government that deliberately has three centers of power -- the legislative, executive and judicial branches.

Too many times, the state's highest court has extended the Legislature a presumption that in fashioning legislation it adhered to the state constitution, when in fact it had done no such thing. * * *

The state Supreme Court, even in the face of more appropriate lower court rulings, has allowed, more often than not, the Legislature the latitude to operate according to its own rules, overriding in the process the people's rules: the constitution.

An opinion from the The Clarion News:
The issue: Two state Supreme Court justices want you to keep them on the bench.

We suggest: Given their own questionable fiscal behavior and complicity in the pay-grab, a ‘no’ vote is recommended. * * *

We are recommending a "no" vote on the retention question regarding state Supreme Court Justices Sandra Schultz Newman and Russell Nigro.

We can’t list here their respective political parties – we didn’t look their party affiliation up because it doesn’t matter. Democrat or Republican, both justices should be rejected for retention for two reasons.

First, the two justices are part of a state Supreme Court which recently was spotlighted for its members expense accounts.

According to the Patriot News of Harrisburg, the seven justices spent a total of $164,000 on expenses last year.

The expenses included: $1,766 to frame a picture; 115 dinners for Nigro with bills as high as $400, including an $85 bottle of wine; OnStar subscriptions for their privately-owned vehicles; and 34 washes for Justice Thomas Saylor’s car.

Second, this is the first chance voters have to tell our state legislature how we feel about their middle-of-the-night pay grab back in July. The legislature is hoping you’ve forgotten their greed and arrogance.

Why involve the state Supreme Court justices in your anger? Isn’t the Supreme Court – the judicial branch of our state government – supposed to be separate from and a balance to our state legislature and the executive branch? Yes, it most certainly is. Was it a separation from and balance to those branches in the pay-jacking? Not at all. Pennsylvania State Supreme Court Chief Justice Ralph Cappy actually helped engineer the dirty deed and then had the nerve to tell the public the legislature’s action was "courageous." Unfortunately, Cappy doesn’t face a retention vote until 2009.

Those are some of the "opinion pieces." In news stories, the Uniontown Herald Standard reports:
Two Pennsylvania Supreme Court justices are facing a rare foment of opposition to what would normally be quiet and apolitical re-election bids Tuesday as anger from the July pay raise spills into the polls for the first time.

Critics campaigning to unseat Supreme Court Justices Sandra Schultz Newman and Russell Nigro say the two justices do not deserve second, 10-year terms because they and the rest of the seven-member court have failed to keep the Legislature in check with the Pennsylvania constitution.

Specifically, critics point to the court's upholding of what they believe are unconstitutional procedures used by the Legislature to ram through controversial laws, procedures that shut out the public and also debate among rank-and-file members.

The pay raise - which raised salaries for top government officials including the justices themselves - became law at 2 a.m. because the Supreme Court has enabled such procedures, critics claim. * * *

Nigro and Newman did not play an overt roll in the pay raise bill, as Chief Justice Ralph Cappy did, but in a kind of guilt-by-association, the two justices are now having to stand alone for the court's actions and a public that's grown hostile towards state government.

Newman and Nigro did not return calls for comment, in keeping with the typically reserved response judges have towards public debate. But supporters - namely the Pennsylvania Bar Association which endorsed the two justices - say it's unfair to pin judges to individual court decisions because doing so politicizes the bench.

"It is simply unfair on every level to say, 'I've looked at the universe of decisions that a justice has made and I disagree with a couple of them and therefore oppose them,'" said Pennsylvania Bar Association president William Carlucci. "You give justices the feeling that their continued service to the public is based on a popularity contest." * * *

It would be notable, indeed, if opponents were successful in turning one or both of the justices out of office. Never before in the 283-year history of the Supreme Court - the oldest appellate court in the nation - have voters removed a justice in a retention vote.

Normally, such retention elections barely register a blip in public consciousness.

The last time a justice even came close to losing a retention was in 1993 when former Justice Nicholas Papadakos managed only 54 percent of the vote because of controversy over his and other justices' taxpayer-funded expenditures, according to G. Terry Madonna, a political pollster at Franklin & Marshall College.

Similar criticism has arisen this time around, with critics pointing to a Harrisburg newspaper's report showing $164,000 in court expenditures last year, including Nigro's charging of an $85 bottle of wine and meals worth more than $400.

"We are not getting snapshots of public servants, we are getting portraits of royalty," said Russ Diamond, the Lebanon County leader of the anti-pay raise group, Operation Clean Sweep.

From the NEPA (NE Pa.) News, dated 10/31/05:
In "retention" elections like those on Nov. 8 that feature Nigro and Newman, voters do not have the option of replacing the judges, only an up-or-down decision on whether to grant them another term. Voter turnout is typically small for these off-year elections and no statewide judge in Pennsylvania has ever been ousted in a retention vote.

But this year, public furor lingers over the Legislature's handling of a pay-raise law that generously boosted salaries for its members, as well as judges, top executive-branch officials and district attorneys. With no legislative election campaigns until next year, citizen groups and other critics of the law have filled the political void with an ad hoc campaign to oust Nigro and Newman. * * *

If voters refuse to retain Nigro and Newman, they would finish their present terms, which end in January. Gov. Ed Rendell would appoint temporary successors and they would serve through the 2007 judicial elections, when voters would elect new justices to full 10-year terms, said State Department spokesman Brian McDonald.

Nigro's campaign raised more than $350,000 through mid-September _ mostly from lawyers _ in what he described as a safeguard against unexpected attacks. He has said he will return all the money to contributors if it is not needed. On Friday, he said he had not aired any radio or TV ads of his own and had no immediate plans to do so.

Pensylvania's judicial selection process differs from Indiana's. In Pennsylvania, all judges initially are elected on a partisan ballot, and thereafter on a non-partisan retention ballot; whereas in Indiana our appellate judges and justices are appointed by the Governor from a slate proposed by a judicial nominating commission. After two years, they are subject to a "yes/no" vote from the voters, and again every 10 years thereafter.

My recent Res Gestae column on the Indiana retention vote is discussed in this 10/21/05 ILB entry, and this 10/23/05 entry.
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*It actually is not clear whether the Pennsylvania Supreme Court has been asked to rule yet -- as I read more, it looks like they haven't. Here, from a columnist in the Pittsburgh Tribune:

At 2 a.m. Friday, July 7, the General Assembly passed a pay-raise bill covering the three branches of government without debate or public input. Salaries were raised up to 54 percent and, adding insult to injury, the pay-jacking bill allowed legislators to claim their raises as "unvouchered expenses." That sneaks around the state Constitution prohibition of legislators giving themselves instant raises before standing for re-election.

Speaking of sneaking around without public input, the Legislature's ringleaders along with executive and judicial branch representatives were involved in many backroom talks -- public not invited. And since so-called informal meetings produce no paper trail, Pennsylvanians are assuming the worst about the looters.

House Speaker John Perzel had told this column that Chief Justice Cappy was involved in "a lot" of the secret meetings. He refused to say how many. Mr. Cappy and his fellow justices surely will be asked to rule on the constitutionality of the bill that includes pay raises for them. Could Cappy have a more troubling ethical dilemma?

And here, from today's Scranton Times-Tribune:
In perhaps the most shocking political development since Dewey defeated Truman, Pennsylvania legislators grudgingly acknowledged this week that the public has a say in how it’s governed. * * *

In what newspapers statewide described as “a stunning reversal,” “a shocking turnaround” and “a desperate attempt to avoid being voted out and having to get real jobs,” the state House and Senate passed bills that would repeal the extraordinarily outrageous pay raises legislators granted themselves in the wee hours of July 7.

The raises, which also increased the salaries of Gov. Ed Rendell, D-Cheesesteak, his staff and some 1,000 judges, were greeted with the kind of public backlash usually reserved for tax hikes, sex scandals and Michael Jackson. * * *

Mr. Rendell promised to sign the repeal bill, as soon as legislators produce a version with no loopholes. Most observers expect that to happen by early next week, or 2010.

For constitutional reasons no one understands, the Senate version of the repeal would leave pay hikes for judges intact, but the rollback of the remaining raises can only be seen as a victory for a relentless, vocal public, who, due to high unemployment and other factors, had lots of free time to devote to the cause.

Posted by Marcia Oddi on November 5, 2005 11:50 AM
Posted to Indiana Courts