In another installment of our occasional Court Watch series, we look at mudslinging in the final days of the contest to fill a Supreme Court vacancy in Pennsylvania.
- In one ad, the state GOP alleges that Democratic candidate Jack Panella, a Superior Court judge, "turned his back" on the wrongful imprisonment of hundreds or thousands of juveniles, and that he "didn’t protect our kids." But there’s no evidence that Panella or the Judicial Conduct Board he headed mishandled a complaint about another judge. That judge was eventually indicted in connection with a scheme that involved taking kickbacks in exchange for sentencing juvenile offenders to a crony’s privately owned detention facility. There was nothing in the complaint, however, about that offense.
- An ad sponsored by Panella’s campaign attacks the Republican candidate, Superior Court Judge Joan Orie Melvin, for leading a career "mired in controversy" and for rulings and actions that have been labeled "extreme" as well as "partisan." But, while Melvin did attract some controversy in the mid-1990s, the claims in the ad are overblown and inflate criticism of some of her rulings.
The race is considered especially important because the winner will tip a 3-3 balance between Democrats and Republicans on the court. The justices will play a key role in congressional redistricting after the 2010 census.
No Role in "Kids-for-Cash"
An ad from the Pennsylvania Republican Party alleges that Jack Panella "turned his back" in 2006 when a complaint about a Superior Court judge was sent to the Judicial Conduct Board on which Panella served. The subject of the complaint and another judge were later indicted by a federal grand jury for, among other things, taking kickbacks to send juveniles to a detention facility owned by a crony.
Republican Party of Pennsylvania TV Ad: "Abuse"
Announcer: Hundreds of children were sent to a detention center without just cause.Two judges indicted taking kickbacks. Judge Jack Panella turned his back on these children when he and the Judicial Conduct Board received a complaint about the judges. Jack Panella could have stopped the abuses, but he didn’t. Panella and the board didn’t take decisive action. He failed us when we needed him most. Panella’s lack of attention hurt our children. Panella didn’t protect our kids and he hasn’t earned our vote.
The Luzerne County "kids-for-cash" scandal is still making headlines in Pennsylvania, and even gained national attention this year. It’s a nasty one. The two judges, Thomas Ciavarella and Michael Conahan, pleaded guilty earlier this year to charges of tax evasion and wire fraud in the scheme, wherein, according to prosecutors, they took $2.8 million in kickbacks in exchange for sending thousands of juveniles to two private detention centers. A judge rejected the plea agreement this summer, and the pair now face new indictments charging them with racketeering, money laundering, bribery and other violations.
But it’s not true that Panella exhibited a "lack of attention" in the matter that "hurt [Pennsylvania] children," that he "could have stopped the abuses" of kids or that he "turned his back" on them.
Panella, a Superior Court judge, was chairman of the 12-member judicial conduct panel in 2006 when the anonymous complaint came in. It accused Conahan of manipulating the assignment of cases to his fellow judges and hiring relatives and allies to staff the court, and it alleged that Conahan had been seen meeting a reputed mobster. The document also described a close relationship between Conahan, Ciavarella and attorney Robert Powell, who owned a juvenile detention center. According to the complaint, Conahan assigned Ciavarella to hear juvenile cases, and a "stringent" pattern developed in which juveniles were sentenced to serve their time at Powell’s facility rather than at several other facilities where they had been placed in the past.
Still, while the complaint alleged that Conahan and Ciavarella may have unfairly sent business to their friend, it didn’t say that juveniles were unjustly sentenced for minor transgressions, which is information that came to light in the investigation and formed the heart of the government’s case. The unfair sentences were imposed to help fill up Powell’s facility.
Five former members of the conduct board who served with Panella when the complaint came in have said that, while they are not permitted to discuss the board’s work openly, the ad’s charges are “patently false. The five asked the state GOP to pull the spot, saying it implies “that somehow we looked away from evidence that children were being mistreated.” They said: “Nothing could be further from the truth.” And indeed, there were no such charges in the complaint.
In addition, it is standard procedure for the conduct panel to forward any complaint containing criminal allegations, as this one did, to the appropriate state or federal prosecutors, a source familiar with the board’s procedures told FactCheck.org. When that occurs, the board refrains from acting against the accused judge or judges so as not to interfere with a criminal investigation.
Assistant U.S. Attorney Gordon Zubrod, the prosecutor of the two former judges, praised the Judicial Conduct Board’s action in forwarding the complaint. “We got that early on in the case,” Zubrod told the Associated Press in September. “They were very cooperative with us. There was no hiding the ball.”
A last note: In a sweeping order issued Oct. 29, the state Supreme Court overturned the sentences of every juvenile sentenced by Ciavarella between Jan. 1, 2003, and May 31, 2008, which could total as many as 6,500 cases.
"Mired in Controversy?"
On the other side of the ticket, Panella’s campaign alleges in an ad that Melvin’s career has been "mired in controversy," that her rulings "have been labeled extreme," "her judicial temperament … questioned," and more.
Judge Jack Panella for Supreme Court TV Ad: "Career"
Announcer: Her career has been mired in controversy – Joan Orie Melvin. She was caught in one of the biggest scandals in Pittsburgh, covering up her absentee record as a judge. Melvin’s rulings have been labeled extreme – restricting the rights of working people and women. Her judicial temperament has been questioned. And Melvin’s actions have been called partisan and political. Some question whether she can even be impartial on the bench. Joan Orie Melvin is the wrong choice for Supreme Court.
As back-up for this televised assault, Panella’s campaign referred us first to a scandal dating back to the mid-1990s in which three defendants, including one judge, stood trial for allegedly fixing 472 cases in Common Pleas Court. Melvin did not play a role in the trial. However, during the investigation, authorities obtained a notebook kept by one of the defendants containing the names of a number of judges and others, along with case numbers and desired outcomes. Melvin’s name was listed three times. No further explanation was given, and she was never charged, nor were most of the others listed. Melvin’s campaign spokesman Mike Long didn’t respond directly when FactCheck.org asked about this incident.
Panella’s campaign also cited articles saying that in a 1997 race, Melvin was on the campaign trail rather than on the bench for at least 47 weekdays in a period of less than eight months. When asked about her absences, Melvin told the Pittsburgh Post-Gazette that she took no vacation that year, but the paper reported that she had vacationed with her family for a week at the Jersey shore. The developments led the Post-Gazette to pull its earlier endorsement of her candidacy. Long didn’t respond to FactCheck.org’s questions about this, either.
Panella’s campaign has grounds, in our judgment, for asserting that some "controversy" has been attached to Melvin’s career. The assertion that she’s been "mired" in it, though, overstates the circumstances. But we find far less substance to the claims that her rulings have been called "extreme" and her actions "partisan and political." Panella’s campaign referred us to two of Melvin’s rulings, but not to citations in which they were called "extreme," and we couldn’t locate any independently. (The rulings were not available online.) And for the accusations of partisanship, we were referred to a blogger’s posting.
The essence of a judge’s work is to decide winners and losers, and there will always be those who are unhappy with the outcome, and with the judge. Also, since Pennsylvania jurists run on party labels, we suspect that Democrats are more likely to find fault with Republican judges, and vice versa. However, we have found no established, nonpartisan source who has used these terms in connection with Melvin. There are certainly bloggers who have weighed in, but we find that very thin back-up for the ad’s allegations.
On the question of Melvin’s "judicial temperament," Panella’s campaign referred us to her pursuit of an anonymous blogger who had accused her of "misconduct" on a political gossip site. America Online filed a brief in one of the cases she filed against the blogger, calling her suit and others like it "an illegitimate use of the courts to silence and retaliate against speakers." We’re not sure what this incident says about Melvin’s temperament, but we’d note that it doesn’t involve a case in which she is sitting as a judge.
More important, the Pennsylvania Bar Association, in rating Melvin "Highly Qualified" to fill the Supreme Court seat (the group’s highest ranking and the same one it gave Panella), said of Melvin: "She is recognized as genial and fair minded, and she has demonstrated sound judicial temperament."
Melvin’s spokesman noted that the Post-Gazette had denounced Panella’s ad as "sleazy." That’s true, but the same editorial said the claims in the Republican Party’s ad linking Panella with the kids-for-cash scandal, which Melvin has echoed in campaign appearances, were "without justification."
In addition, he noted that the Post-Gazette editorialized in favor of Melvin in the current election. We’re not sure how much boasting Melvin should do about that endorsement, however. The piece said that both candidates were excellent, but that Melvin’s gender and Western Pennsylvania roots tipped the balance.
– by Viveca Novak
Barnes, Tom. "Panella supporters attack ads." Pittsburgh Post-Gazette. 28 Oct 2009.
Janoski, Dave. "Complaint says chief counsel for Judicial Conduct Board knew of judge’s ties in ’06." The Times-Tribune. 10 Sep 2009.
Janoski, Dave. "Conahan, Ciavarella face new charges." The Times-Tribune. 10 Sep 2009.
Schmitz, Jon. "The defense’s turn; lawyers to describe Cross’, Mellogranes’ actions as informal bargaining over pleas." Pittsburgh Post-Gazette. 4 Dec 1995.
Schmitz, Jon. "Stumping on Public Time." Pittsburgh Post-Gazette. 24 Oct 1997.
Ove, Torsten. "A culture of ticket-fixing is hard to uproot in Western PA." Pittsburgh Post-Gazette. 12 Mar 2006.
Urbina, Ian and Sean D. Hamill. "Judges Plead Guilty in Scheme to Jail Youths for Profit." The New York Times. 13 Feb 2009.
"Conduct unbecoming: Melvin and Panella dirty themselves in vicious ads." Editorial. Pittsburgh Post-Gazette. 29 Oct 2009.
"Supreme Court: In a duel of two top jurists, it’s Judge Melvin." Editorial. Pittsburgh Post-Gazette. 25 Oct 2009.
Infield, Tom. "Supreme Court election crucial to redistricting, leaders say." The Philadelphia Inquirer. 28 Oct 2009.