October 31, 2017
Widener Commonwealth Law School hosted a forum for candidates for the Pennsylvania Superior Court on October 31st from 12:30 to 1:30P.M. The forum was sponsored by the Pennsylvania League of Women Voters, Committee of 70, and Pennsylvanians for Modern Courts. Moderator David Thornburg introduced the candidates and explained the ground rules: each candidate would have one minute to answer questions posed by the three panelists, and both the questioner and first answering candidate to respond would rotate through the respective panels. The panelists were Dan Packel of Law 360, Brad Bumsted of The Caucus, and John Micek of the Patriot-News and PennLive.
Superior Court is Pennsylvania’s intermediate appellate court of general jurisdiction. The court when at full complement has 15 commissioned judges, and there currently are four vacancies. The open seats occurred with the retirement of Judge Cheryl Lynn Allen (R), the election of Judges Christine Donohue (D) and David Wecht (D) to the Supreme Court in 2015, and the appointment by Governor Wolf of Judge Sallie Mundy (R) to the Supreme Court seat vacated by former Justice J. Michael Eakin. Governor Wolf appointed Carl Solano (R) to replace Judge Allen, and H. Geoffrey Moulton, Jr. (D) and Lillian Harris Ransom (D) to replace former judges Donohue and Wecht. Mr. Solano and Ms. Ransom did not seek the nomination of their parties for a full term. The field for the four open seats is a crowded one, with four candidates each from the Democratic and Republican parties and one Green Party candidate.
The Democratic candidates are Judge Moulton, Judge Carolyn H. Nichols of the Philadelphia Court of Common Pleas, Judge Maria McLaughlin also of the Philadelphia Court of Common Pleas and Judge Deborah A. Kunselman of the Beaver County Court of Common Pleas. The Republican candidates are Craig Stedman, currently District Attorney of Lancaster County, Judge Wade Kagarise of the Blair County Court of Common Pleas, Judge Emil A. Giordano of the Northampton County Court of Common Pleas and Mary P. Murray, Magisterial District Judge (District 05-2-25) in Allegheny County. The Green Party candidate is attorney Jules Mermelstein of Upper Dublin, Montgomery County. Moderator David Thornburg advised that Republican candidate Mary P. Murray was unable to attend the Forum leaving eight participants.
Up first, Dan Packel asked the candidates if their time campaigning had affected their view on election versus merit selection of judges. Jules Mermelstein responded that there are plusses and minuses to both election and merit selection. For an informed electorate elections are a good thing. Unfortunately, many citizens are uninformed about the judges and that is a minus. Judge Kagarise stated that he started out favoring elections and that he still does. He thought that regional elections might be an improvement over statewide. He has experience with the federal merit selection system and thinks elections are better. Judge Giordano suggested that a hybrid system in which judges are appointed and initially and then run for retention would be an improvement. He noted that money and geography have too much influence on judicial races. Judge Kunselman agreed that a hybrid system might be more effective but suggested that candidates go through a merit selection process and then run for election. She feels that it’s important to engage with the voters and likes elections. Judge McLaughlin stated that judges should be elected and that she doesn’t think that geography plays such a significant role, noting that there are not many judges from Philadelphia on the appellate courts. Judge Nichols enjoys campaigning and suggested that a current bill providing that voters should elect common pleas judges, and that appellate judges be appointed and then run for election in 4 years was a possible solution. Craig Stedman suggested that the method of selecting judges is an issue worth studying but that for now the PBA evaluation process is a useful tool. Judge Moulton said there were pros and cons to both merit selection and elections. He noted that judges in Pennsylvania were appointed until the 1850’s but that the process was so corrupt it was replaced with the popular election of judges. He too thinks that the bill referenced by Judge Nichols is a promising idea.
The second question came from Brad Bumstead who asked about accepting gifts and if the candidates supported a gift ban. All the candidates stated that they did not/would not accept gifts and that they supported a gift ban. Craig Stedman suggested that all judicial conferences be held in Pennsylvania. Judge Moulton noted that he helped implement Governor Wolf’s executive agency gift ban and pointed out the tension between a judicial gift ban and the need to raise money to run for judge.
John Micek then asked about the propriety of past campaign donors appearing before judges. Judge Giordano stated that he would not hear a case where a litigant gave money. He suggested that lawyer donations were different because of the disclosure requirements but that he would self-recuse to avoid the appearance of impropriety. Judge Kunselman agreed about litigant donors and noted that lawyer donations are part of the process-not because they seek favor but to elect good judges. She would recuse if there was a personal conflict. Judge McLaughlin said that money would never affect her decisions and that she takes her judicial oath seriously. Judge Nichols noted that lawyer donations must be disclosed and agreed that gifts from litigants are different. She would avoid the appearance of impropriety and stated that lawyer donations get nothing but a good judge. Craig Stedman stated that people must have faith in the system. Judge Moulton said that what the public thinks is important and noted that donations are part of the process. He feels that disclosure is key. Jules Mermelstein noted that the Green Party does not accept money from special interests and that the other parties do. Judge Kagarise said that ultimately it comes down to individual integrity.
Dan Packel noted the ongoing discussion in the legislature about creating a commerce court within Superior Court and asked if the candidates think such a step is necessary. Judge Kunselman thinks it is not because such cases are a small percentage of the cases before the court. She believes it more important that the judges have the proper training to handle such matters. Judge McLaughlin would be open to looking at it. She noted that some family law cases involving large sums of money were like commercial litigation with emotion added. Judge Nichols noted that such cases are a small percentage of the total and that she has experience handling them. Craig Stedman said he would hesitate to answer until he was on the court. Judge Moulton noted that in 15 months on the court he wrote over 250 opinions and heard over 800 cases. He thinks a commerce court is a good idea at the trial level but not for Superior Court because such cases are a small percentage of the total. He expressed concern that a commerce court would take judges away from other cases. He might favor it if more resources and judges were provided. Jules Mermelstein agreed with Judge Moulton. He noted that he had no commercial litigation experience and that Continuing Judicial Education was important. Judge Kagarise stated that he did not think such a court was necessary and any concerns could be alleviated by electing experienced judges. However, he noted that it’s up to the legislative branch. Judge Giordano agreed that it was up to the legislature but suggested that a special Post Conviction Relief Act court was needed more.
Brad Bumstead asked If live television and radio coverage of court proceeding should be allowed (as opposed to the tape delayed appellate arguments shown on PCN). All judges said yes as to appellate courts. Judges Giordano (juvenile and competency) and Kunselman (juvenile) would make certain exceptions. All candidates expressed concerns about trial court coverage on issues such as rape, custody and child molestation (McLaughlin), witness intimidation (Nichols, Stedman) and the impact on juror willingness to serve (Giordano). Judge Moulton noted that courts are open to the public and that while transparency is important there are competing considerations at the trial level.
John Micek asked the candidates what about them distinguishes them from the other candidates. Judge Nichols stated that she is a second-generation lawyer of color in a system where most defendants are of color, and that she has a commitment to justice. Craig Stedman noted that he is a district attorney and that there are no former DAs currently on the court. He also is a veteran and there are no veterans currently on the court. He would be a voice for victims. Judge Moulton called himself the most non-partisan candidate, noting that he is a life-long Democrat who has worked for many Republicans, and he has diverse endorsements. He said that you can’t tell his party affiliation from his opinions. Jules Mermelstein suggested that as the Green Party nominee he is the most non-partisan candidate. He has been a lawyer since 1980 and he has a wide range of experience. He is the first third party candidate to be endorsed by PSEA. Judge Kagarise noted his diverse experience. He, too, is a veteran. He said the courts need more judges from areas such as Blair County. Judge Giordano stated that he is uniquely qualified and was “highly recommended” by the PBA. He legal experience is notable for its breadth and diversity. Judge Kunselman said she is ready to go and that she is a leader in her court. She, too, was highly recommended by PBA based on her clear writing style. She spent 6 years on the Judicial Education Commission. Judge McLaughlin noted that she has never had one of her decisions overturned on appeal and that Superior Court is an error correcting court.
Dan Packel cited judicial education requirements and asked the candidates if they think judges are receiving needed training, with an emphasis on ethics. Craig Stedman reponded that judges should lead by example and that additional education should be provided. Judge Moulton said that continuing judicial education was good now but could be better. He noted that some people are inclined to bad behavior regardless of education and that the solution is to pick ethical people. Jules Mermelstein said that the amount of ethics training is not as important as who you are as a person, and echoed Judge Moulton’s comment about picking people with ethical values. Judge Kagarise said that mandatory education is a good step but that it comes down to individual integrity. Judge Giordano cited the need to choose people with basic core values. Judge Kunselman feels that mandatory judicial education is a good idea. She noted that educational opportunities are always available to those who want to learn, and said that judges should be hungry to learn. Judge McLaughlin stated that judicial education is a good thing and that people should look at the quality of the candidates. Judge Nichols agreed that mandatory education is good but said that it comes down to people. Vetting is important. She also noted that judges are required to report unethical conduct or problems.
Brad Bumstead asked the final question: is Pa’s wiretapping law too restrictive or are more protections necessary? Judge Moulton noted that Superior Court is the court that approves wiretaps and that there is an en banc argument coming up in which the court must decide if blanket wiretaps are allowable of if each individual wiretap must be approved separately. He said that whether the law is too restrictive or should be strengthened is a policy question and that he would apply the law as written. Jules Mermelstein said that he has no wiretap law experience and thus could not offer an opinion. Judge Kagarise said that the law is not too restrictive and that privacy is important, as is educating the public. Judge Giordano also said that the law is not too restrictive and that he doesn’t see the need for changes, but he will follow the law. Judge Kunselman stated that privacy is important and that the needs of the public should be considered. Judge McLaughlin stated that she won’t legislate from the bench and will follow the law as written. She said the law should balance privacy with protecting the public but doing so is an issue for the legislature. Judge Nichols said that it’s a challenging issue that she views through the question of probable cause. Craig Stedman stated that the law must have proper balance and that more legislative guidance would be helpful.
With the completion of the questions, the candidates were asked to give closing statements. Judge Kunselman noted that she is the first woman elected to the bench in Beaver County and that 96 percent of the bar voted to support her retention. She knows the law, is fair to both sides and has a good heart. She looks forward to working with her fellow judges.
Judge McLaughlin said that the black robe should be inspiring not feared. See cited her record of clerking for a Superior Court judge, and noted that she has never had a case overturned and has never called out sick. She was a single mom for a long time and has real life experience.
Judge Nichols said that she stands in her father’s shoes. She seeks justice and treats all fairly. She is engaged in the community and is seeking to stop the school-to-jail track.
Judge Moulton noted that he is highly recommended by PBA and accomplished professionally, having clerked for the 2nd circuit and for Justice Rhenquist, and was confirmed 50-0 by the Senate. He has integrity and a good judicial temperament.
Jules Mermelstein stated that he has no connection to any special interest or big money. He has been a lawyer since 1980 and he has a wide range of experience. He is the first third party candidate to be endorsed by PSEA.
Judge Kagarise cited his experience and noted that this is no time for inexperienced candidates. For him, being a judge is about public service and having the highest ethical standards.
Judge Giordano noted that he is highly recommended by PBA. His parents emigrated from Italy in 1955. He has a diverse group of endorsements including the FOP, PSEA and the State Troopers Association, has handled a wide breadth of cases and he is involved in his community, all of which provide him with a unique perspective among the candidates.
With that, David Thornburg brought the Forum to an end.
About the Author:
Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service. Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.