As today’s story makes clear, many voters will decide whom to support for Supreme Court justice based on little more than the candidates’ party affiliation. And such ties do indeed tell you a lot about the candidate in court races, where candidates are often constrained about what they can say about themselves.
“Party affiliation is huge in judicial elections, largely because have so little useful information in making a decision,” said Lynn Marks, executive director of Pennsylvanians for Modern Courts.
But Ms. Marks said voters “want to evaluate candidates’ reputations for fairness and integrity, as well as their experience.” And the stakes are high.
Whichever party takes two or more of the three seats available on the court will control it come 2016. That will shape not just the way state law is interpreted, but the political boundaries by which our lawmakers are chosen: After the 2020 census, the court will play a key role in redrawing district maps for state legislative districts.
DEMOCRATS
Christine L. Donohue, Allegheny
Age: 62
Currently: Pennsylvania Superior Court Judge
Supporters: Endorsed by labor groups statewide, as well environmental and pro-LGBT groups, Judge Donohue is the lone Democrat endorsed by the Pennsylvania Business Council. She has also been endorsed by the Pittsburgh Post-Gazette editorial board.
Pennsylvania Bar Association rating: Highly recommended
With judicial ethics a focus in this election, Judge Christine Donohue makes a point of noting her service on statewide panels that investigate allegations of misconduct by both judges and lawyers. But she says she got her most lasting ethics lesson as a coal miner’s daughter whose father once found an envelope with “thousands of dollars” lying on the sidewalk near a funeral home.
“That money would have been a game-changer,” she recalled. “But they returned it to the funeral home. And it’s struck me ever since: That’s integrity.”
The first in her family to attend college, Judge Donohue spent 27 years in private practice, much of it specializing in corporate law, and now lives in a restored Tudor home in the city’s East End.
But Judge Donohue has maintained a concern with those on the lower rungs of society’s ladder. Asked at a April 29 debate about the biggest problem facing the justice system, she cited “the lack of quality defense for indigent criminals.”
She’s served on the Superior Court since 2008, and has impressed the Bar Association with a “wealth of knowledge in a variety of areas, including civil, domestic relations, criminal and constitutional matters,” as well as for “high ethical standards.”
Judge Donohue said one of her principal concerns was with privacy rights, and ensuring that law enforcement doesn’t overstep its bounds.
Many criminals, she said, “are really bad people. … I don’t care if people who are fairly convicted sit in prison for years. But these issues don’t apply only to citizens accused: They apply to all citizens. That’s why we’re here: to make sure the guideposts are in place.”
Notable case: Judges don’t often relish the chance to talk about a case in which they were later overturned, but for Judge Donohue, In re: Adoption of S.P. is still worth talking about.
The case involved a Washington County man who was imprisoned, for accidentally but recklessly shooting his father, before his daughter was born. While incarcerated, he’d sought — and been denied — visitation rights, and had exchanged letters and artwork with his child. A model prisoner, he qualified for release in August 2009. But six months before that, a court terminated his parental rights.
Judge Donohue wrote the majority opinion reversing that move. Prior case law, she noted, established that “incarceration alone cannot serve as the basis for the termination of a parent’s right to his child.” And the father’s efforts “at establishing a relationship with S.P. are uncontroverted.”
Recently retired Superior Court Judge Cheryl Allen dissented, arguing that the child had special needs and the father “could not provide a specific time-frame [for being able] to care for Child,” in part due to parole conditions.
The Supreme Court upheld that view, ruling that while incarceration was not a “litmus test,” it could be a factor in deciding “whether a parent is incapable of providing ‘essential parental care, control, or subsistence.’”
Judge Donohue said she still dislikes that ruling. “You know who that decision impacts most? People of color” — who are disproportionately likely to be incarcerated.
Still, she added, “Do I want to change that [precedent]? I couldn’t,” in part because the Supreme Court’s decision was unanimous. “The law doesn’t change that quickly, and probably shouldn’t.”
Kevin M. Dougherty, Philadelphia
Age: 52
Currently: Administrative Judge of the Philadelphia Court of Common Pleas Trial Division
Supporters: Endorsed by the state AFL-CIO and numerous unions, as well as a number of progressive organizations who support pro-LGBT and environmental causes.
Pennsylvania Bar Association rating: Recommended
Kevin Dougherty is the quintessential working-class Philadelphia judge, right down to the Irish Catholic upbringing, and the brother who is the business manager of a powerful union.
“Growing up in a blue-collar, working-class neighborhood, I was the first of my family to go to college,” he said. “Many people can relate to that.”
But Judge Dougherty prides himself on reaching out to communities some Pennsylvanians might find it harder to relate to, like the transgender youth that appeared in his courtroom.
His concern with those juveniles was spurred when another judge referred to a transgender youth as “it”: “I found that highly offensive,” Judge Dougherty said. “A lot of these kids were using drugs because they were kicked out of the house [and] were doing sex work to support themselves.”
Judge Dougherty had administrative responsibility for the juvenile court, and he began initiatives to ensure that transgender youth received medical help and were safely protected in the juvenile detention system. He also arranged to bring social-service agencies to his courtroom: Given the number of families who relied on public transit, he said, “I can’t in good conscience send a person across the city for services.”
The state Bar Association lauded Judge Dougherty as a “strong administrator” who has crafted “innovative solutions to problems in the juvenile [system].” The bar also touted him as a “hard worker and a consensus builder.”
The latter asset will be important given the Supreme Court’s recent troubles, Judge Dougherty said. The Supreme Court appoints judges to leadership positions at the county level. Given that the Supreme Court was riven by disputes between two Philadelphia-area justices — Seamus McCaffery and Ronald Castille — Judge Dougherty said he was in “a unique, and potentially awkward, position. But during the conflict between those two justices, I continued to do what I believe in.”
Judge Dougherty said that the power to appoint administrative judges was a key, if often overlooked, duty of the Supreme Court — one he hoped to use to encourage progressive change. “There’s a huge supervisory power, and the Supreme Court really controls the direction of the courts.”
In an election where union support of Democrats has been a talking point for conservative groups, Judge Dougherty has attracted special scrutiny because of his support from Philadelphia-based Local 98 of the International Brotherhood of Electrical Workers, whose business manager is Judge Dougherty’s brother.
Judge Dougherty said he would not sit in consideration of any cases involving that union: “We have a stringent code of judicial conduct, and a commonsensical approach” to ethics, he said
Notable case: In 2010, Judge Dougherty handled a widely publicized event in which more than 50 juveniles staged a “flash mob,” accosting pedestrians and drivers alike in Downtown Philadelphia’s Dilworth Plaza during the afternoon rush hour. His tough love approach was evident throughout: The Philadelphia Inquirer reported that he threatened to sentence one defendant to a year in the juvenile justice system for every lie he told in court, but also that Dougherty “demonstrate[d] a comprehensive view of juveniles who get in trouble with the law,” asking how they could get themselves to college. Prosecutors and children’s advocates alike lauded his handling of the case, and the Superior Court later rejected an appeal by one of the defendants, upholding Judge Dougherty’s ruling.
David N. Wecht, Allegheny
Age: 52
Currently: Pennsylvania Superior Court Judge
Supporters: Endorsed by a constellation of labor unions and progressive groups, including environmentalists and LGBT-rights organizations. Judge Wecht has also been endorsed by the Pittsburgh Post-Gazette’s editorial board.
Pennsylvania Bar Association ranking: Highly recommended
In Western Pennsylvania, the name “Wecht” is practically synonymous with a willingness to wade into the fray. And while Superior Court Judge David Wecht isn’t the lightning rod that his father, former County Coroner Cyril Wecht, has been, he’s no shrinking violet either.
“Most judges,” he said, “do not want to make waves.”
Not a problem for Judge Wecht, who was elected to the Superior Court in 2011. During an Oct. 20 judicial forum before Pittsburgh progressive groups, he was often a fiery voice speaking on issues like gerrymandering and the criminal justice system.
While judicial races tend to be short on policy proposals, Judge Wecht has proposed a variety of reforms, including banning gifts to judges and televising lower court proceedings. (“My father’s father, who was an immigrant, would come Downtown and watch a courtroom,” he said. “People should be allowed to do that from their own home.”)
A graduate of Yale Law School, Judge Wecht worked in private practice and then became Allegheny County’s Register of Wills, a now-defunct row office. He became an Allegheny County Common Pleas judge in 2003, and later presided over Allegheny County’s family division, where he established a “one family, one judge” rule. Since those who appear in family court for one reason often come back for another — troubled homes can lead to juvenile delinquency — the rule assigned the same judge to all proceedings involving a given household.
Wecht has been rated “highly recommended” by the state Bar Association, which cited his “forward-thinking approach to the law, unquestioned legal ability [and] integrity.” He’s also the only Democrat to have received the endorsement of the conservative Pittsburgh Tribune-Review.
“I think people know that the Wecht name stands for justice,” he said. “And that David Wecht didn’t just fall off the wagon.”
Notable case: Last year, Judge Wecht dissented in a Blair County case in which the defendant pleaded guilty to charges that he’d sold goods online that he knew were stolen. But after pleading guilty, the defendant, Michael Friedenberger, learned from a newspaper account that three key witnesses against him had died during a series of procedural delays. He appealed, arguing that he should have been informed of the deaths and allowed to withdraw his plea.
A majority of the three-judge panel rejected that argument, arguing that no one outright lied to Friedenberger, and that “there is currently no duty on a prosecutor to disclose the death of a witness.”
Wecht disagreed, and blasted a Deputy Attorney General involved in the case for not disclosing the deaths to the defense. The attorney, he wrote, had “flirt[ed] with violating at least one provision in our Rules of Professional Conduct.”
“If prosecutors are permitted to withhold the fact that a material witness to a crime has died from the defense,” he added, “such a ruling would ... encourage prosecutors intentionally to conceal the truth about their ability to prove a case.”
Judge Wecht noted that the vast majority of the time, he upholds convictions, and that he had support from police unions. Still, he said, “It really bothered me that the government could withhold information like that.”
REPUBLICANS
Anne E. Covey, Bucks
Age: 55
Currently: Commonwealth Court Judge
Supporters: Endorsed by conservative causes including pro-life and gun-rights groups as well as business interests. Judge Covey has also received some backing from labor organizations, unusual for a Republican candidate in this election.
Pennsylvania Bar Association rating: Not recommended
As a girl, Anne Covey recalls, “I wanted to be the first female Supreme Court Justice.”
Sandra Day O’Connor got there first, but Judge Covey has reached Pennsylvania’s statewide Commonwealth Court, which hears cases involving state or local governments and regulatory agencies.
That background, she said, has made her “the only candidate that would be on the court with that regulatory background. That’s an asset the Supreme Court needs.”
“I have worked very hard never to bring foreign law or foreign precedent to any of my decisions,” she added.
Judge Covey acknowledged that the temptation rarely arose to cite such precedents at Commonwealth Court. But U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer have cited foreign precedents in their opinions: “The door has been opened,” she said, “so it is a concern.”
In private practice, Judge Covey has specialized in employment law. She also worked for the state Labor Relations Board, and she attributes the labor support she’s received to the quality of her work there.
But while the state Bar Association lauded her opinions as “well written, clear and concise,” it gave her a “not recommended” rating. That stems from a TV ad that targeted rival Democrat Kathy Boockvar during Judge Covey’s successful 2011 Commonwealth Court bid.
As the Post-Gazette reported at the time, the ad accused Ms. Boockvar of “want[ing] to spend your tax dollars registering convicted criminals to vote,” a reference to Ms. Boockvar’s support of legislation requiring state prisons to give voter-registration forms to prisoners after release. (The state prison system already provided such forms, so the measure merely codified an existing policy — at no additional cost to taxpayers, supporters contended.)
Candidates who seek Bar Association support sign a pledge not to produce false or misleading ads, and the Bar Association said Judge Covey broke that pledge.
Judge Covey makes no apologies: “I made a comparison ad with my opponent and I didn’t agree with how she used tax dollars. They disagreed with me using my First Amendment rights.”
“People are angry about how I was disrespected” by the bar association process, she said. “As lawyers, we’re supposed to be there advocating for our rights.”
Notable case: If there’s such a thing as a “famous Commonwealth Court ruling,” it would be Judge Covey’s opinions involving the NCAA’s Penn State sanctions following the sexual-abuse crimes of former coach Jerry Sandusky. The NCAA imposed a $60 million fine on the school, with the money to be spent on sexual-assault prevention programs nationwide. The Pennsylvania legislature, however, passed a 2013 law requiring the money to be paid to the state Treasury, and be spent within the state itself.
The NCAA challenged that law, and the ensuing debate involved arcane legal issues. But Judge Covey’s April 2014 opinion echoed the resentments of many Penn State fans. Because of financial penalties and post-season bans, she wrote, “Student-athletes, trainers, coaches, administrators and support personnel who had excelled in their jobs through hard work, practice, commitment, teamwork, sportsmanship, excellence and perseverance were told none of that mattered.”
The lawsuit was settled in January, and the NCAA restoring Penn State’s bowl eligibility and scholarship programs last year, as well as wins earned under late coach Joe Paterno. Judge Covey’s ruling helped garner attention and support that few judicial candidates receive. Steelers great Franco Harris, a Penn State graduate and long-time Paterno defender, hosted a fundraiser for her last month.
Michael A. George, Adams
Age: 56
Currently: Adams County President Judge
Supporters: Endorsed by law-enforcement organizations including the state Fraternal Order of Police, as well as Republican-aligned business and anti-abortion groups.
Pennsylvania Bar Association Rating: Recommended
Michael George presides over a Gettysburg courthouse, but he says he’s still a McKeesport kid at heart.
“I bleed Black and Gold,” he said. “People here in central Pennsylvania don’t really understand it.”
Born the eighth of nine children, Judge George said his working-class upbringing gives him a connection to those who appear before him. “I know what it’s like to receive food stamps because my family did,” he said. “And I know the meaning of personal responsibility because I could be in the streets if I had made other decisions.”
After getting a law degree from Dickinson Law School in 1985, he worked in private practice, where he did some criminal defense work. He was elected Adams County District Attorney in 1996, and became a Common Pleas Court judge there in 2002. In 2013, he became the court’s president judge, with responsibility for administrative oversight.
“There are very few civil issues, and not a single criminal issue, that I haven’t seen from all three sides -- as criminal defense attorney, prosecutor and judge.”
He also risked becoming a victim in 2011, when a prisoner he sentenced in a burglary case sought to hire a cellmate to kill him. That prisoner, Lance Patrick Greenawalt, was later convicted of criminal solicitation to commit murder.
The Pennsylvania Bar Association touted Judge George’s reputation for being an “excellent administrator” and having a “professional and fair judicial demeanor” that produced well-reasoned opinions.
Helpful backing, in the form of a $500,000 check, also came from Gary Lowenthal, whom Judge George calls a friend. Mr. Lowenthal formerly ran Boyds Bears, makers of collectible teddy bears. The donation gave Judge George an early boost, and the endorsement of party elders in January didn't hurt either. (All three of the candidates who had the backing of party leaders went on to win the primary.)
In an April 30 debate, Judge George said “the powers that be” had told him that, because he was from a small county, “You can’t win no matter what your qualifications are.” Judge George said that offended him, and “It was offensive to my donor also.”
Notable case: Judge George says that his experience with justice goes beyond “the sanitized information in the law library. … I’ve had the experience of looking a person in the eye and sentencing him to death.”
His best-known case, in fact, may be his presiding over the jury trial of Christopher Lynn Johnson, who in 2010 made headlines statewide by fatally shooting Wildlife Conservation Officer David Grove while Johnson and a friend were poaching deer.
Johnson was convicted of first-degree murder and sentenced to death in 2012, but later appealed several aspects of Judge George’s handling the case. Last last year, the state Supreme Court uphold his guilty verdict unanimously, though Democrats Debra McCloskey Todd and Max Baer thought the death sentence should be reconsidered.
Another Justice, Thomas Saylor, might well have agreed were it not for Judge George.
During the penalty phase, the prosecutor asked jurors to consider whether any of the testimony about Johnson’s life could “outweigh the life of Officer Grove.” Judge George instructed the jury that “It is not a proper consideration to weigh the value of one life against another life, and you may not do so.”
Johnson’s attorney appealed the matter anyway, and while the court majority dismissed the concern, Justice Saylor called the prosecution’s statement “plainly inappropriate.” The death sentence, he said, could “only be sustained on the basis of the prompt and explicit curative measures taken by” Judge George.
Judith F. Olson, Allegheny
Age: 57
Currently: Pennsylvania Superior Court Judge
Supporters: Endorsed by pro-life and gun-rights groups, as well as various business organizations. She’s also backed by the Pittsburgh Post-Gazette editorial board.
Pennsylvania Bar Association rating: Highly Recommended
In a judicial race where voters often have a hard time telling candidates apart, it doesn’t hurt to have a recognizable name … which is why Superior Court Judge Judith Olson identifies herself to audiences as “the nice Judge Judy.”
A Pittsburgh native who lives in Franklin Park, Judge Olson studied law at Duquesne University. After clerking with federal Judge Maurice Cohill, she worked in private practice with a focus in corporate law until being appointed, in 2008, to fill a vacancy on the Allegheny Common Pleas Court. She served just over a year before being elected — the top vote-getter in a field of nine candidates — to the state Superior Court.
Judge Olson is one of the three Republican nominees, but she has had bipartisan support in the past: She was appointed to her first judgeship by Gov. Ed Rendell, a Democrat. And while she said the Supreme Court has been “an embarrassment” in recent years, she said “I think the world of” Justice Debra McCloskey Todd, another Democrat.
“I think it’s very important that judges don’t go in with a political agenda about how they want the law to be,” she said. “If you want to do that, then run for the General Assembly.”
The state Bar Association called her a “keen legal thinker” who writes “well-reasoned and well-written opinions” and “is consistently assessed as having a high level of integrity.” And even as outside groups appeal to partisan passions with TV ads, Duquesne University law professor says Judge Olson might prove to be a moderate voice on the court. “She’s the kind of Republican who might be more unpredictable,” he said.
Despite her party’s endorsement, Judge Olson’s early fundraising has been anemic — just $1,110 through March. Her campaign says that’s because she was waiting to see whether she earned the party’s backing before committing to a run, and that reports due next week should reflect much more activity.
Notable cases: In 2012, Judge Olson wrote a majority opinion in C.M.K. vs. K.E.M., a child-custody case in which a mother wanted to relocate her son from Mercer to Erie County, nearly 70 miles away from his father. The Superior Court upheld a lower court’s ruling rejecting the move: Judge Olson wrote that the greater distance “significantly impairs Father’s ability to exercise his custodial rights.” Although the mother offered to grant the father more time with the child overall, the court found that the extra distance would “break the continuity and frequency of Father’s involvement with Child,” by precluding him from attending school and sporting events.
Family law practitioners said the ruling was significant as it was the earliest appeals-court decision following a 2011 state law governing child custody. Writing for the Legal Intelligencer, attorney Andrew D. Taylor said the ruling cleared up procedural questions while establishing that courts will look not just at the total amount of time parents spend with children, but on how involved they are in day-to-day parenting.
“It used to be the parent with primary custody who was moving a modest distance away would most certainly be permitted to relocate,” he wrote. “This may no longer be the case.”
INDEPENDENT
Paul P. Panepinto, Philadelphia
Age: 66
Currently: Philadelphia Court of Common Pleas
Bar association rating: Recommended
Many judicial candidates profess disdain for the partisan election process. But Judge Panepinto, the lone independent, comes by his skepticism the hard way. He has run for statewide judicial posts three times before, always as a Republican, but never survived the primary. He made a foray at seeking the party nod early this year as well, but ultimately withdrew and ran as an independent.
“It’s not sour grapes,” he said. “It’s the right thing to do. … I don’t want to be beholden to the politicians. They aren’t helping me; they aren’t helping the court.”
Judge Panepinto is still proudly conservative: His website boasts that he is “pro-life” and “for family values and integrity.” But he’s more likely to boast of his work in the Philadelphia courts, where in the late 1990s he pioneered an anti-truancy program called “Project START.” The program offers family counseling or other services, like purchasing new glasses, to address the needs of truant children. “We’re breaking down the barriers and the excuses for not going to school,” Judge Panepinto said.
Having entered the race late, Judge Panepinto has garnered few endorsements. But recently retired Superior Court Judge Cheryl Allen, whose own Supreme Court bid foundered in the GOP primary, is backing him, calling him "a truly independent, wise and ethical voice." By contrast, her endorsements reads, the candidates "hand-selected by the politicos ... ultimately fail the people."
Notable case: In one of his more significant cases, Judge Panepinto was ultimately overturned by the court he hopes to join. The matter stemmed from a lawsuit filed by the family of an 11-year-old girl who claimed to have been sexually assaulted by three teenage stadium staffers at an August 2000 Philadelphia Phillies home game. The defense argued that the girl had consented to the encounter, and had been “flirting” with the teenagers beforehand. Judge Panepinto allowed that testimony, and did not inform the jury that, had this been a criminal proceeding, consent would not have been a valid defense in a case involving a victim so young.
Judge Panepinto said the law is silent about whether that rule applies in a criminal case, and it only made sense to include testimony about consent in a case involving claims of emotional suffering.
“The defense was that she consented, and if you consented, that negates the [trauma] issue,” Judge Panepinto said. The jury ruled in favor of the defendants, but the girl’s family appealed, and the case attracted the concern of women’s groups. The Women's Law Center filed a brief arguing that “a great danger to children's psychological well-being lies with the blame-shifting inherent in admitting evidence of consent.” While Judge Panepinto’s ruling was upheld by the state Superior Court, he was reversed by the Supreme Court in 2008.
Noting that there was “a broader societal notion" that sex with a girl so young was "reprehensible regardless of consent,” the Supreme Court held that it would be “inconsistent … to conclude that civil defendants, who are defending a financial interest, can [cite a victim’s consent as a defense] when such a defense is not even available in a criminal case.”
“I just followed the law at the time,” Judge Panepinto said.
First Published: October 25, 2015, 4:00 a.m.
