PA voters could oust two Supreme Court justices

Even though Pennsylvania voters get a chance to vote against sitting Supreme Court justices once each decade, the races are rarely close and justices are usually retained by wide margins.

But this year, Chief Justice Ron Castille and Justice Max Baer could be in for a close call.

A combination of voter anger towards all politicians and activists working against the two justices — Castille in particular — could make Tuesday's retention elections among the most interesting races in a year with few elections of real significance at the state level.

Castille, chief justice since 2008, has been on the court since 1993 and was retained by voters in 2003. That was the same year Baer was elected to the court, making this his first retention election.

But 2003 was before the infamous "midnight pay raise" vote in the state Legislature. It was also before the recent run of judicial scandals in Pennsylvania – the Family Court mess in Philadelphia, the "Kids for Cash" scandal in Luzerne County and the conviction of a sitting member of the state Supreme Court for using public funds for a campaign.

Activists opposed to Castille's retention say he should pay a price for being the literal and figurative head of the judiciary in Pennsylvania during those dark days.

"The judiciary branch is supposed to be democracy's failsafe, but in Pennsylvania right now the judiciary is failing," said Eric Epstein, a Harrisburg-area activist and director of Rock The Capitol, a government reform group.

Epstein and other activists have been campaigning against Castille's retention since May, when they unveiled a list of 10 reasons voters should oust the chief justice.

Castille, as one might expect, sees things differently. In an interview Monday, he defended his role as head of the court system, saying he reacted immediately and appropriately to each scandal as he became aware of them.

But Castille is campaigning, perhaps more vigorously than might be expected given the long history of easy retention victories for judges.

"We've been all over the state," he said during an interview with PA Independent. "We're confident, but it's up to the voters."

Those working against Castille want voters to remember how they felt in 2005, when they ousted Supreme Court Justice Russell Nigro in the wake of the controversial legislative pay raise.

Castille authored the majority opinion on the 2005 pay raise case, in which the Supreme Court decided all judges would get to keep the raise even though lawmakers repealed their own raise in the wake of public outcry.

The judges ruled that the Legislature had no constitutional standing to revoke the pay increase from judges, citing the separation of powers clause and the need for an independent judiciary.

"The Legislature gave us a raise and tried to take it away," Castille said, adding that he still views that ruling as the correct one.

GRIN AND BAER IT: Justice Max Baer's campaign ran an internal poll showing only 55 percent of voters supported retention for him and Castille. That's remarkably low compared for judges in Pennsylvania, who usually win with upwards of 70 percent.

Other scandals soon followed. Castille was personally implicated in the financial mess surrounding the construction of a new Family Court building in Philadelphia. He had already authorized $12 million in spending for the new building before the contract was cancelled, after it was discovered an attorney was representing both the Supreme Court and the proposed developer of the site.

That attorney was fired and his law firm paid the state $4 million in sanctions.

Other recent scandals have fallen beyond Castille's immediate purview, but critics say he should have to pay the price for them happening on his watch — in the same way a baseball team might fire a manager when the players don't perform well on the field.

The 2010 "Kids for Cash" scandal in Luzerne County involved county judges getting kick-backs from the owner of a private juvenile detention center in return for sending kids there, even when the sentences didn't match the crime.

Castille said Monday he was unaware of that situation until the judges were arrested by the FBI, at which point he immediately suspended them without pay.

In 2012, the FBI broke up a long-running scheme at the Philadelphia Traffic Court where judges would "fix" tickets for politically-connected Philadelphians, a situation that was described as a "two-tiered system of justice." Before the indictments, Castille had ordered an internal review of the traffic court, but no direct action had been taken against the judges involved in the scandal.

Since the indictments, the Legislature has voted to shut down the traffic court and move its duties to the city's municipal courts.

And then there was the conviction of Supreme Court Justice Joan Orie Melvin for using public dollars to run her 2009 campaign. Two of the justice's sisters, including state Sen. Jane Orie, R-Allegheny, were convicted for the same crimes.

Another potential scandal involving Justice Seamus McCaffery looms on the horizon, with a federal investigation already underway.

"The captain of the ship is responsible for the direction of the voyage," Epstein said. "And over the last 10 years, we have seen an incredible erosion of credibility of the judiciary."

Castille doesn't dispute the run of recent scandals hurt public perception of the judicial branch.

"Anything that one judge does bleeds over into the system, and the judicial system is really based on the confidence of the citizens and the willingness to obey the law," he said. "Unfortunately, there are always going to be some bad apples."

The important thing, he says, is how the system reacts to those "bad apples."

Though the scandals might be beyond Castille's control, other things are not. A Philadelphia-based tea party group is campaigning against both Castille and Baer because they were part of the majority on the Supreme Court that blocked the state's new voter ID law in a 4-2 decision last year.

"We have contacted over 170 tea party and patriot groups across Pennsylvania to ask that they join us in urging the rejection of Justices Ron Castille and Max Baer for their role in obstructing the implementation of the Voter ID law in both the 2012 and 2013 Pennsylvania primary and general elections," said Don Adams, president of the Independence Hall Tea Party.

The wild card in the election is voters' anger — and apathy.

In a low-turnout election, grassroots efforts like those led by Epstein and Adams could pose a serious threat to Castille and Baer. Combined with voter outrage over unrelated issues like the recent government shutdown and general antipathy towards all politicians at all levels, it could be a perfect storm that leads to a repeat of 2005.

According to the Pittsburgh Post-Gazette, an internal poll conducted by Baer's campaign showed just 55 percent of voters favored retention for the two justices.

But Castille has plenty of heavy hitters backing his retention.

The state AFL-CIO is campaigning on his behalf, and he got $50,000 from the Philadelphia Trial Lawyers Association, which represents many of the same attorneys who appear before the court. Former governors Ed Rendell, a Democrat, and Tom Ridge, a Republican, are making phone calls to urge voters to keep Castille on the bench.

"Ron has been a remarkably effective chief justice, modernizing the court and presiding over many important cases in Pennsylvania during a very challenging time," Ridge said in a statement.

Even the Inquirer, which once called for Castille to resign over the family court building scandal, endorsed the chief justice's retention.

The voters will get the final say Tuesday.

Lynn Marks, executive director of Pennsylvanians for Modern Courts, a judicial reform group, said it's a good thing the retention election — usually below most voter's radar — is getting more attention this year.

"Retention elections provide the public the important opportunity to weigh in on whether a judge should remain on the bench," she said. "They should be an opportunity for the public to take a meaningful look at the judge's entire tenure."

If he wins, Castille will only be able to serve one more year on the bench because judges are required to retire at age 70. Castille will hit that marker in March.

This story was updated to correct that Justice Max Baer was elected to the state Supreme Court in 2003, not appointed.

Boehm can be reached at Eric@PAIndependent.com. Follow @PAIndependent on Twitter for more.