[UPDATE: The returns are in. Wecht (D) won the Superior Court race and Covey (R) won the Commonwealth Court race. Every judge up for retention was retained. For the new seats for Court of Common Pleas, Chester and Delaware went to the Republicans and Montgomery went to the Democrats. See more detail at the Pennsylvania Department of State’s Election Returns website.]

Admit it, my fellow citizens of Pennsylvania: you’re clueless who is running for judge. It’s okay. Even lawyers rarely recognize most of the candidates.

A few months ago I put together a voter’s guide for the Philadelphia judicial primary to try to corral the dozens of candidates into a single page that would at least answer the most basic questions about who the heck these people are who will be deciding matters of life, liberty and pursuit of happiness. The response was positive, so I’ve put together one for the upcoming judicial elections. I only have so much time, so I’m going to do the state-wide judicial elections (Supreme, Commonwealth, and Superior Courts) and then the Court of Common Pleas in Philadelphia, Montgomery, Bucks, Chester and Delaware Counties.

C. Dale McLain, president of the Pennsylvania Bar Association (PBA), put together a “Ten Traits to Consider When Voting For Judges” guide (PDF) which fairly describes the non-partisan traits you want in a judge, like trial court experience and a record of community involvement.

Here’s the problem: investigating judges to see if they have those traits is nearly impossible. The most that a typical voter knows about the candidate is their party.

Too busy to read on? Here’s the short version: Except for a few Philadelphia County candidates (see here), none of the candidates have been declared unqualified by the bar association and each seems to fairly represent the ideals of their political party. You can safely vote “yes” on retention (or abstain) and then vote the party line for the new judges.

In many ways, the race as a whole is summed up by the Commonwealth Court race between Boockvar (D) and Covey (R). Boockvar used to represent employees who claimed discrimination by their employers. Covey used to defend employers from discrimination claims. Pick which side you tend to sympathize with and run with it.

For the state-wide candidates, all of the retention judges have (obviously) served as judges, so I’ve dug up a substantive court opinion written by each. Of the candidates running for the Commonwealth Court and Superior Court vacancies, only one of them has previously served as a judge, so I’ve tried to find some detail on what the others did in their practice as lawyers. As I’ve written about before on this blog (e.g., Why Should Human Rights Campaign Applaud The Lawyers Who Fight It? and Judging Lawyers By Their Causes), I don’t think lawyers should be judged by their clients, but they should be judged by their causes. Putting on a suit and cracking open a casebook doesn’t absolve someone of all personal responsibility for their decisions.

Like with the primary guide, I’ve taken candidates, linked to what seemed to be the most authoritative website about them, and then included here what I thought was the most substantive information provided about them. Every judicial candidate says they want to be “fair” and “unbiased,” but unless you know them personally (or know someone who does) the only real information we have to go on is their professional experience. A qualified judicial candidate should be able to describe, with some specificity, their professional interests and accomplishments.

I highly recommend voters also check out the League of Women Voters’ Smartvoter.org page on Pennsylvania, which lists all of the candidates by county and gives some background, and the Pennsylvania Bar Association’s PA Vote Smart, which has PBA’s evaluation of each state-wide candidate.

Before we start, a quick civics lesson. The highest court in Pennsylvania is the Pennsylvania Supreme Court, which has the final word on the Pennsylvania Constitution, statutes, and common law. Like the United States Supreme Court, there are few cases the Pennsylvania Supreme Court is required to hear; instead, the court decides, at its discretion, which appeals from the intermediate appellate courts it wants to hear.

Below the Supreme Court, Pennsylvania has two intermediate appellate courts, the Superior Court and the Commonwealth Court. That is unusual: most states have just one intermediate appellate court. Most cases are, by default, in the Superior Court. Most everyday citizens won’t encounter the Commonwealth Court unless they’re suing the government or if they’re appealing a workers’ compensation or unemployment decision.

Below those intermediate appellate courts are the Courts of Common Pleas for each county. There are Civil, Criminal, Family, and Orphan’s Divisions within many of those, but generally you just vote for a judge to the Court of Common Pleas for your county and then the court administration, lead by the President Judge of each county, figures out where to assign the judges within that county.

Below the Courts of Common Pleas are the municipal courts (sometimes called “small claims court”) which hear civil matters below a certain monetary threshold (usually $10,000 or lower) and some summary criminal offenses. In the interest of time and space, I haven’t discussed the municipal court candidates, but Smartvoter.org lists them.

Want my opinion? Retain all appellate judges, then vote David Wecht for Superior Court and Kathryn Boockvar for Commonwealth Court. The only Court of Common Pleas candidate I know well enough to endorse is Richard Haaz in Montgomery County.

State-Wide — Pennsylvania Supreme Court — 1 Retention

Only one Supreme Court position is on the ballot, and it’s the retention voter for Justice J. Michael Eakin, a Republican who, prior to becoming a judge, practiced primarily in Cumberland County. As a matter of history, Supreme Court Justices rarely lose retention elections unless they have written controversial opinions or if the court itself has recently been involved in some sort of controversy. Lawyers find many issues to disagree on, and I don’t agree with Justice Eakin on everything, but I think few lawyers would say Justice Eakin is controversial.

A common issue in a variety of cases — personal injury, workers’ compensation, tax, etc. — is whether a given person is an “employee” of a company or an “independent contractor.” As a very crude generalization, injured plaintiffs and workers tend to prefer that person be deemed an “employee” while defending companies and insurers tend to prefer that person be deemed an “independent contractor,” but it’s more an issue of legal nuance than an issue of politics. Justice Eakin has filed more than one dissenting opinion arguing for a more narrow view of when a person is legally an “employee.” See, e.g., the Brookhaven and Perrone opinions.

Justice Eakin’s most memorable dissent I’m aware of was in Porreco v. Porreco, where a wife sought to void a prenuptial agreement because the wedding ring she received (which was valued at $21,000.00 in the agreement) turned out to be worth, shall we say, a lot less. The majority of the Pennsylvania Supreme Court said that wasn’t enough to void the whole prenuptial agreement, and Justice Eakin dissented:

A groom must expect matrimonial pandemonium when his spouse finds he’s given her a cubic zirconium instead of a diamond in her engagement band, the one he said was worth twenty-one grand. Our deceiver would claim that when his bride relied on his claim of value, she was not justified for she should have appraised it; and surely she could have, but the question is whether a bride-to-be would have. The realities of the parties control the equation, and here they’re not comparable in sophistication; the reasonableness of her reliance we just cannot gauge with a yardstick of equal experience and age. This must be remembered when applying the test by which the “reasonable fiancée” is assessed. She was 19, he was nearly 30 years older; was it unreasonable for her to believe what he told her? Given their history and Pygmalion relation, I find her reliance was with justification. Given his accomplishment and given her youth, was it unjustifiable for her to think he told the truth? Or for every prenuptial, is it now a must that you treat your betrothed with presumptive mistrust? Do we mean reliance on your beloved’s representation is not justifiable, absent third party verification? Love, not suspicion, is the underlying foundation of parties entering the marital relation; mistrust is not required, and should not be made a priority. Accordingly, I must depart from the reasoning of the majority.

(Footnote omitted.) I find that sympathy with “the realities of the parties” to be refreshing. More Justice Eakin dissents available here.

State-Wide — Pennsylvania Superior Court — 1 New Judge, 2 Retentions

The Pennsylvania Bar Association has a short summary of all the candidates and their questionnaire answers. Pennsylvanians for Modern Courts’ electoral page links to the videos of the candidates’ forum (mov file).

The PBA questionnaires helpfully ask the candidates to mention the five most significant cases they were involved in (if they’re currently a lawyer) or that they decided (if they’ve been a judge). Below, I’ve cherry-picked from that list one case for each candidate.

The highest-profile contested race in the state is between David N. Wecht (Democrat) and Vic Stabile (Republican) for the one open seat on the Pennsylvania Superior Court. Wecht is “highly recommended” by the Pennsylvania Bar Association while Stabile is “recommended.”

David Wecht is currently a trial judge in Allegheny County who was, until January of this year, assigned to the Family Division and so is primarily known for his family law opinions. He’s known as a scholarly judge; Yale B.A., Yale Law J.D., and he’s an Adjunct Professor at Duquesne and University of Pittsburgh’s law schools. In one family law case, Judge Wecht included a notable footnote arguing that Pennsylvania’s “presumptions” about paternity — e.g., that “regardless of biology, the married people to whom the child was born are the parents” and that “in the absence of a marriage, the person who has cared for the child is the parent,” per Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997) — were antiquated in light of current family relations and the easy availability of DNA testing:

In [Hamersley v. Brown, (York County, June 26, 2006)], Judge [Richard] Renn has encouraged the Superior Court to review the applicability of the presumption of paternity and estoppel doctrine in view of the current state of the family. The undersigned joins in Judge Renn’s reasoning. In an age when family relations have changed and DNA testing can provide prompt and accurate paternity determinations, these doctrines may have outlived their usefulness. In an age when there is easy access to court records via the Internet, children whose paternity has been questioned enjoy little security in ‘knowing’ their father based on nothing more than what our Supreme Court has called the ‘two great fictions of the law of paternity.’ Brinkley, 701 A.2d at 180. In any case where paternity is questioned, there necessarily is a question as to whether the family is still intact. And, given the fluid nature of today’s family, it is hard to define what an intact family is. With changing social realities and the ready availability of accurate genetic testing, the twin ‘fictions’ of presumption of paternity and paternity by estoppel increasingly seem quaint vestiges of a bygone era. In their current form, these devices are no longer sound law or policy. As Chief Justice Flaherty reminded us in Brinkley, cessante ratione legis cessat et ipsa lex (where stops the reason, there stops the rule). 701 A. 2d at 181. The reason has stopped. The rule should as well. It is time that our appellate courts revisit the issue.

Vargo v. Schwartz, 2007 Pa. Dist. & C. 4th, 15–16 (County Ct. 2007).

Vic Stabile is the managing partner of Dilworth Paxson’s Harrisburg office. Dilworth Paxson is a large law firm which “conducts a broad and diverse regional law practice representing non-profit foundations, a wide variety of clients ranging from Fortune 500 companies to closely-held businesses, governmental entities and individuals,” and Stabile’s practice is consistent with the firm as a whole, focusing on “commercial litigation, construction law, administrative agency law, corporate governance, municipal law, procurement, and gaming law.” A quick peek at the docket in the United States District Court for the Middle District of Pennsylvania shows him as listed counsel in two cases: in one, Stabile represents a taxpayer bringing an action against the United States to recover an overpayment of taxes paid on real estate received as a gift; in the other, Stabile is defending a biotech company that is being sued by a consultant for allegedly failing to pay the consultant.

Stabile’s questionnaire lists as a notable case Bedford Downs v. State Harness Racing, in which he represented the applicant for a harness racing license who was turned down in part because of his deceased grandfather’s alleged connections to organized crime figures. He sued the Pennsylvania State Harness Racing commission; in 2007, the Pennsylvania Supreme Court agreed that “guilt by ancestry” was impermissible, and so reversed the decision on those grounds.

The two judges up for retention are John T. Bender and Mary Jane Bowes, both of whom are “recommended” by the Pennsylvania Bar Association.

Judge Bender lists among his notable opinions Capoferri v. Children’s Hospital of Philadelphia, 893 A.2d 133 (Pa.Super. 2006), a case well known to lawyers who litigate medical malpractice cases. In Capoferri, Judge Bender, writing for an “en banc” panel (as in, nine judges instead of the normal three) held that trial courts were required to allow lawyers in medical malpractice cases to ask jurors what they had heard and thought about a “medical malpractice crisis” in Pennsylvania. The case was decided in a time when Pennsylvania was inundated with insurance company and healthcare company advertisements claiming such a “crisis,” and thus a time when the jury pool was strongly inclined to rule against malpractice plaintiffs. Lawyers who represent injured persons still consider this one of the more important and helpful opinions of the last few years, and it is cited by the Pennsylvania Standard Suggested Civil Jury Instructions.

Judge Bowes’ list of cases apparently didn’t make it to the PBA’s website, but her most frequently cited opinion is probably Sullivan v. Chartwell Investment Partners, 2005 PA Super 124, in which she overturned a trial court opinion dismissing a former employee’s claim against their former employer for violations of the Wage Payment and Collection Law and asserting claims relating to breach of contract, promissory estoppel, fraud, and negligent misrepresentation. The opinion was notable for its handling of the “gist of the action” doctrine (read more at the link), a quirky doctrine of Pennsylvania law that trips up plaintiffs simultaneously alleging a breach of contract and then some other claim like negligence or tort, because, under the doctrine, the “gist of the action” is one or the other. Sullivan took a nuanced view, and held that there’s a difference between alleging you were defrauded into a contract and alleging that the other side later broke that contract, and so you can have both claims at the same time. Plaintiffs in commercial and employment contract cases often cite Sullivan, and other courts often look to the case to decide these issues.

State-Wide — Pennsylvania Commonwealth Court — 1 New Judge, 3 Retention

As with the Superior Court, the Pennsylvania Bar Association has a short summary of all the candidates and their questionnaire answers. The questionnaires quite helpfully ask the candidates to mention the five most significant cases they were involved in (if they’re currently a lawyer) or that they decided (if they’ve been a judge). Below, I’ve cherry-picked from that list one case for each candidate.

For the one vacancy, Kathryn Boockvar (Democrat) is running against Anne E. Covey (Republican). Both are “recommended” by the PBA and, ironically, both are from Bucks County and both have experience primarily in employment and labor law, though on opposite sides of the “v”.

Boockvar started out for her first few years as a public interest attorney who worked on health policy research and represented low-income clients in court before opening up her own firm for ten years representing employees with employment discrimination / FMLA claims and claimants for social security disability. For the past three years she’s worked with the Advancement Project, a non-partisan civil rights group that tries to increase access to electoral participation.

Covey started out as assistant counsel to Pennsylvania Labor Relations Board, then spent a few years at Blank Rome and McCarter & English (both large corporate firms) defending corporations sued by their employees. She then formed her own firm and continued “representing employers in discrimination claims, contract disputes, collective bargaining negotiations and all aspects of the employment relationship from pre-hiring considerations through post-termination concerns,” and was was appointed to the PLRB itself by Governor Schweiker and then reappointed by Governor Rendell. She wrote a book, The Workplace Law Advisor, to guide employers on matters of employment law.

The three judges up for retention are Reneé Cohn Jubelirer, Mary Hannah Leavitt, and Robert E. Simpson, Jr., all of whom are “recommended” by the PBA.

Cohn Jubelirer’s most notable opinion is probably Jones v. City of Philadelphia, 890 A. 2d 1188 (Pa. Commw. Ct. 2006), another en banc opinion which addressed a question inexplicably still not answered by the Pennsylvania Supreme Court after more than two hundred years: whether an individual can bring a private lawsuit for monetary damages alleging violations of their rights under the Pennsylvania Constitution. Jones examined that question in terms of Article 1, § 8 of the Pennsylvania Constitution — which is almost identical to the Fourth Amendment of the United States Constitution — but found that, in the absence of any state statutes authorizing any sort of constitutional claim, the Commonwealth Court couldn’t permit the claim. I disagree with the analysis (I agree more with Judge Smith-Ribner’s dissent), but that’s just my opinion, and Cohn Jubelirer’s opinion is undeniably thoughtful, meticulous, and sincere.

Leavitt’s list of cases also wasn’t attached to the questionnaire on the PBA website, but I think one of her more notable ones is DeWeese v. Weaver, 824 A.2d 364, also an en banc case, in which Judge Leavitt, on behalf of the court, struck down an attempt to tuck tort reform (i.e., a repeal of joint and several liability) into a bill that was actually about DNA testing of criminal offenders. The bill blatantly violated Article III, Section 3 of the Pennsylvania Constitution, which provides that “no bill shall be passed containing more than one subject, which shall be clearly expressed in its title,” but the issue was politically charged, and it was refreshing to see the Commonwealth Court reign in the General Assembly from ignoring the procedures required by the Pennsylvania Constitution. In a followup order the Commonwealth Court formally declared the bill unconstitutional and void. A similar tort reform bill was passed earlier this year (I wrote in opposition to it), through more appropriate procedures.

Simpson, Jr.’s list of cases similarly wasn’t attached to the questionnaire on the PBA website. I must confess I’m not familiar with Judge Simpson’s work, but from reviewing his dissents I can tell he’s a stickler for clean, clear rules. Consider this dissent in the Dumbert unemployment appeal, in which the majority of the Commonwealth Court, sitting en banc, permitted an unemployment appeal that was faxed after hours, when the rules require the appeal be filed — whether in person, by delivery, or by fax — by the close of business. As Judge Simpson notes, although this approach is compassionate on the surface, the end result is to irrationally create a loophole just for fax users. Before anyone jumps to conclusions about being unfair to the poor, consider the Cope MCARE insurance case, in which he similarly dissented, arguing that a doctor who sent a copy of a ‘writ of summons’ filed by a patient to his malpractice insurance carrier, but not the state-run MCARE insurance subsidy, shouldn’t be able to use the MCARE insurance coverage because he hadn’t requested it within the time limits required by the statute.

Now for Courts of Common Pleas in the greater Philadelphia area, including Bucks, Chester, Delaware, and Montgomery counties. 

Philadelphia Court of Common Pleas — 11 New Judges, 19 Retention

The Philadelphia race is largely pro forma because Philly is a Democratic town, but there are a handful of judges the Philadelphia Bar Association and the Inquirer have recommended not be retained or elected. The Philadelphia Bar Association has recommended:

• Diana Anhalt (D)
• Anne Marie B. Coyle (R)
• Charles Ehrlich (D)* (listed as both as R & D)
• Angelo J. Foglietta (D)
• Jonathan Q. Irvine (D)
• Vincent L. Johnson (D)
• Sean Kennedy (D)
• Barbara A. McDermott (D)
• Maria McLaughlin (D)* (listed as both as R & D)
• Carolyn H. Nichols (D)
• Thomas M. Nocella (D)
• Kenneth J. Powell, Jr. (R)
• Edward C. Wright (D)

And has not recommended:

• Jim Divergilis (R)
• Ted J. Vigilante (R)

If you want to lean more about each, go back to my post from the primaries, which links to each of their respective websites.

For retention, the Philadelphia Bar Association has recommended:

• Joan A. Brown
• Denis P. Cohen
• Rose Marie Defino-Nastasi
• Thomas Dempsey
• Kevin M. Dougherty
• Gary S. Glazer
• Elizabeth Jackson
• Margaret T. Murphy
• Arnold L. New
• George W. Overton
• Paul P. Panepinto
• Nitza I. Quinones Alejandro
• Lisa M. Rau
• Gregory E. Smith
• Albert John Snite, Jr.
• Earl W. Trent, Jr.
• Chris R. Wogan

And has not recommended:

• James Murray Lynn
• Robert J. Rebstock

Bucks Court of Common Pleas — 1 New Judges, 1 Retention

Congratulations Bucks! Your new Court of Common Pleas judge will be James M. McMaster who, having won the primary, is unopposed for the new seat.

Then there’s one retention vote for Judge Robert J. Mellon. Because he’s a trial judge, it’s much harder to find opinions from him that are available online, but there is an Inquirer article about his original race for that seat on the bench back in 1993. He’s a Democrat and used to practice negligence and malpractice law at his brother’s firm, which is still around as Mellon, Webster & Shelly.

Chester Court of Common Pleas — 2 New Judges, 2 Retention

Chester county has a competitive race this year between Mark Tunnell (R), Tom Purl (D), Fredda Denise Maddox (D), and Ann Marie Wheatcraft (R).

Tunnell is a partner at Gawthrop-Greenwood, a mid-sized (and nearly a century-old) law firm, where he characterized his own practice (in a SuperLawyers profile) as Business Litigation (40%), Personal Injury Plaintiff: General (30%), Estate & Trust Litigation (30%). It’s a little unusual for a Republican to do plaintiff’s personal injury work, but it’s not unheard of: Michael Smerconish did it while it worked here at The Beasley Firm. Tunnell is certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a significant accomplishment for a trial lawyer.

Purl was, quite literally, a drill sergeant in the Army before becoming a lawyer. He spent ten years in private practice, ten years with the Philadelphia Public Defenders in the Child Advocacy section, and then back in private practice until Sam Stretton (running for DA there) asked him to run for judge.

Maddox was a Pennsylvania State Trooper for seventeen years and was involved in a number of significant investigations before going to law school, after which she worked as a City Solicitor for Philadelphia (City Solicitors are a bit different from District Attorneys; they’re not prosecutors, but rather represent and advise the City in other matters) and then a public defender.

Wheatcraft was a case manager at a community mental health center before going to law school. She worked in private practice (in what appears to me to be a general practice of family law, landlord/tenant, and contracts, but I haven’t seen details) before joining the Chester County District Attorney’s office as a prosecutor.

Delaware Court of Common Pleas — 5 New Judges, 3 Retention

Delaware county has the most open seats on the bench of any of the Philadelphia suburban counties, and so has the most organized party campaigns . The Republican party-endorsed candidates (Christine Fizzano Cannon, John P. Capuzzi, Sr., G. Michael Green, Spiros E. Angelos, and Nathaniel C. Nichols) have a Well Qualified Judges website, while the Democratic party-endorsed candidates (Michael Schleigh, G. Lawrence DeMarco, Sally-Ann Heckert Bikin, and Nathaniel C. Nichols (again)) are on the county party’s main website.

Smartvoter has a particularly detailed page on the Delaware county candidates, so I’ll defer to them. Delaware county also tends to lean heavily Republican, so most people assume the Republicans will win every seat.

On retention, President Judge Joseph P. Cronin Jr. and judges Kathrynann W. Durham and Kevin F. Kelly are up for retention. The Delaware County Bar Association’s surveyed practicing attorneys in Delaware County and a majority supported retaining all three.

Montgomery Court of Common Pleas — 2 New Judges, 2 Retention

For the two vacancies, it’s a four-way race among Cheryl Austin (D), Maureen Coggins (R), Richard Haaz (D), and Dan Clifford (R). The Judiciary Committee of the Montgomery Bar Association gave Haaz and Clifford “highly recommended” status and Austin and Coggins “recommended.” I’m pretty sure, though haven’t been able to confirm it, that Haaz and Clifford have more campaign funding than Austin and Coggins, and so their campaigns are higher profile.

Richard Haaz is a trial lawyer for injured persons like me, and so I know through those channels his good reputation. He’s hearing committee chairman for the Disciplinary Board of the Pennsylvania Supreme Court, which hears complaints against attorneys (appointment is a significant professional accomplishment), and he’s on the advisory committed to the Montgomery County Office of Children and Youth.

Daniel Clifford has been Chair of the Zoning Hearing Board of Springfield Township for 14 years, and is a practicing family law attorney who serves on the Family Law Section of the Pennsylvania Bar Association and will be Chair of that Section in two years, also a significant professional accomplishment.

Cheryl Austin was a Captain in the U.S. Navy before becoming a lawyer, and since then served as an Assistant District Attorney and County Solicitor in Montgomery County and most recently practices privately in elder law and estate matters.

Maureen Coggins served as a Montgomery County District Attorney for eight years, including as a Special Prosecutor for the Pennsylvania SPCA, then served as a Public Defender in Montgomery County and Lehigh County and other similar roles for seven years before opening up her own private practice.

Interestingly, both Austin and Coggins are apparently endorsed by the local Fraternal Order of Police, presumably because of their prior experience as prosecutors.

If you made it this far down, congratulations! You care about people granted enormous power and discretion to send you to jail, to enter judgments against you, and to permit you to have your day in court when you feel wronged. Vote your conscience on Tuesday.