Yesterday, I broke the sad news that Judge F.P. Kimberly McFadden is stepping down from Northampton County's bench after 31 years of distinguished service. The Morning Call's Riley Yates followed up with a story listing just some of the reasons why she is so highly regarded. It also turns out, surprisingly, that my analysis is correct. An election to replace her will likely take place this November instead of in 2021. It currently will be a race among three candidates for two open seats. One of them, John Morganelli, received the Republican and Democratic nomination in a primary election. The other two, yet to be named, will be the choice of party bosses. This is the law, but it is also undemocratic.
I quoted from the law on Tuesday. During the day, I researched the matter and found a 1991 case from Allegheny County in which the Commonwealth Court ruled that two judges who withdrew from a retention election would be replaced in a municipal election that year, with the nominees chosen by the political parties. In that matter, the Court noted a "strong public policy favoring an elected judiciary." I am told this practice was followed in 2015 when a Centre County judge withdrew from a retention election.
Although I appear to have read the law correctly and reached the same conclusion as judges did, I think the process is unconstitutional. It violates Article 5 of the Pa Constitution because it does the exact opposite of providing for an elected judiciary. Independents are denied any voice in coming up with a nominee.
This also violates the equal protection clause of the US Constitution. According to our US Supreme Court, all persons "have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualification. The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.” The state law, as it currently exists, makes it impossible for independents to file a nomination petition to succeed Judge McFadden. The time to do that has passed, and there is no provision that would allow independents to get ballot access. I consider this a fatal defect.
Two party bosses, and not the people, will use a flawed and archaic state law to determine who gets to sit on the bench for the next 10 years. This is as undemocratic as things can get. This promotes partisanship, not unbiased judges.
To make matters worse, a person who actually was selected by the voters of both parties, and who encountered no nomination bid from independents, will have to vie for a judgeship against candidates who could be little more than political hacks.
Under our current system, it is at least mathematically possible that John Morganelli, the choice of voters, could lose
By way of qualification, I've heard that Abe Kassis, Josh Fulmer, Vic Scomilio and Richard Yetter are four attorneys who've expressed some interest. I consider none of them political hacks. But party bosses could pick left and right wing kooks.
Our state election laws are outdated, and this is the result.
I'd rather wait until 2021 and let the voters make the call.
Addendum: The Morning Call story indicates that the Department of State will allow independents to file nomination petitions on or before September 16. That's nice, but nothing in the law authorizes this. The law is unconstitutional, and has to be corrected by the state legislature, not the Department of State.
An Express Times story quotes a Governor Wolf official as saying the election must wait until 2021. This is an inaccurate statement as well, something I would expect from a Governor who thinks he can borrow money without approval from the state legislature.
18 comments:
What if the Party picks Kassis? Is that then a bad thing?
What exactly is a "party hack+ according to your world view? Someone you don't like?
I've already indicated that I do not consider any of the people I've heard are interested to be political hacks. Those are people who place party politics ahead of doing the right thing and who would find it very difficult to make the transition to impartial thinking. Probably someone like you.
I've stated why I consider the law unconstitutional, but have mixed feelings. A contested judgeship, and one in which Morganelli must campaign, will increase turnout. This will help Terry Houck, the other Dem seeking a judgeship, the Easton Mayoral race and down ballot Dems seeking county office.
If I were a partisan hack myself, I'd never argue the law is unconstitutional.
Judges are lawyers who choose to be politicians. It's all part of the game lawyers have constructed. Nobody cares because the next fix, by elected lawyers, will be just as stupid.
This post is an example of how independents are used by those who want to game the system in favor of their candidates, and has nothing to do with fairness to independents.
I get that Morganelli will now have to run a campaign and make his case this Fall to voters – including independents – but that’s certainly not a bad thing.
Let’s look at the reality of holding the two races together, instead of just the one we were previously expecting.
• Independents will now have a choice of at least three candidates in November, where previously they would have only had one candidate to choose from (which isn’t a choice at all).
• Independent candidates could now have the opportunity to file their candidacy for two races, instead of just one.
• Independent candidate (if any come forth) would have a much better chance running against three other candidates than they would running against only one candidate who appears on both ballots.
So the reality is that independent candidates and their voters are far better off having both races in this cycle than delaying the second race to 2021.
I understand the Morganelli love and he has a huge advantage in both scenarios since he will appear on both Democrat and Republican ballots.
But to claim that having both races in November is harming independents is a twisting of the facts and a disservice to independents.
Wrong. It is a disservice bc there is no provision in the law that permits them to file on or before 9/15. There also is no provision in the law that would have permitted them to vote in the primary as independents. The DOS cannot just arbitrarily make up laws. That is the function of the state legislature.
This procedure will screw 3rd parties. How many signatures will they need on their nominating petitions? I believe the number set by the DOS was 450 for the other judicial seat up for election, so I assume it will be the same for this one. 450 signatures in essentially 3 weeks is a high burden to meet.
How about this scenario.
Both party's put up female candidates with excellent backgrounds in public service to run as Judges. Now we have three candidates, two of whom are women and John Morganelli. John could have been appointed by the Governor and already been sitting on the bench, however, since he didn't take the appointment as did other candidates in the state, John could now lose to two women candidates. Women will win if they are placed on the ballot.
Did Morganelli shoot himself in the foot?
8:42--Even if he was appointed, Morganelli still would have to face an election this fall.
How about Alicia Zito and Vivian Zumas, for the R and D tickets?
I don't understand this diligent adherence to everything being democratic. There are some positions that shouldn't be up to the people but rather should be vested in non-political institutions, in this case the Supreme Court of PA, the ABA, and the Pennsylvania BA. I see great ethical conflict in the people electing the people who are going to judge them in accordance with the law. Just because the position is based on electibility doesn't mean it baptizes the authority.
”Did Morganelli shoot himself in the foot?”
By finishing the job he was elected to do? Hardly.
"I don't understand this diligent adherence to everything being democratic. There are some positions that shouldn't be up to the people but rather should be vested in non-political institutions, in this case the Supreme Court of PA, the ABA, and the Pennsylvania BA."
Our state constitution favors the election, not appointment, of judges. If you want to change that, change the constitution. But be careful what you wish for.If the Bar makes this decision, there will be far greater conflicts of interest than those that potentially exist in an election by the people. Also, one set of politics will be replaced by another in which the bluebloods and landed gentry call the shots. No thanks.
I'd be willing to change the way appellate judges are elected by creating regions. That would be more democratic and this way people would actually know the candidate.
file a lawsuit and let the supreme court decide as its unconstitutional for anyone but the voters to e
Think all that is bad, you should check out the Callahan cuckoo bird tirade in Bethlehem city council. The guy is unhinged and he wants to be Mayor of Bethlehem??
Morganelli was supposed to win the Congress election.
He'll start doing more press conferences for the free press.
Watch John get knocked out in a three way. Guy has poor political instincts, and terrible luck.
6:33 <-> 6:36,
Nobody gives a shit about your son not making the all-star team.
Long live the hacks!...all of the following played the inside political game to achieve their judicial perches, and we are better for it ( list in not exhaustive) : Grifo, Williams, Freedburg, Moran,McFadden, Simpson, Panella, Baratta, Zito...up and and including soon to be judge, former Rooney campaign manager, Morganelli and federal Judges Lesson and Smith... Hacks have done a distinguished job..
Rosanne Joseph for Judge
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