Why Judicial Elections Matter

There are basically two methods by which an individual becomes a Judge, governmental appointment or direct public election.

Many states, including those surrounding Pennsylvania, use the governmental appointment method. In those states the legislature and/or governor appoint Judges. Pennsylvania, however, uses direct public election, so each of us vote to select our Judges.

This can be a complex and somewhat frustrating process for the voter, as ethical considerations dictate that judicial candidates cannot offer specific opinions on the types of cases that may come before them. So, for example, a judicial candidate could not say what rulings they might make or sentences they might impose in cases of marijuana use under the Controlled Substance Act. Instead, we look at a candidate’s character, background, experience, and broad statements of philosophy.

This Fall on the local level we will be electing Magisterial District Judges (MDJ) and Common Pleas Judges. We will also be voting on whether to retain Common Pleas Judges, whose ten-year terms of service will end, for an additional term. We will also be voting for, and for retention of, Judges and Justices of the appeals courts, the Superior Court, Commonwealth Court, and Supreme Court. I will focus primarily on MDJ election and Common Pleas election and retention.

Magisterial District Judges are classified as Minor Judiciary. To be an MDJ one does not have to be a lawyer or even have a legal background, although recently in Chester County more elected MDJs are attorneys.

In the criminal justice system, MDJs serve a critical function. Criminal cases are initiated in their courts. They are the judicial officers who approve warrants of arrest and related documents assuring that proper procedural rules have been followed. They hold evidentiary hearings, called Preliminary Hearings, to determine if and what charges will proceed to Common Pleas (trial court). While these are not dispositive hearings requiring proof beyond a reasonable doubt, the MDJ must determine if there is credible evidence that a criminal act may have been committed, and the person charged may have committed it.

Among the most important and regularly performed functions of an MDJ is to inform the charged individual of the charges against them, inform them of their basic rights, and determine bail. These occur at the Preliminary Arraignment, where they are the first judicial officer with whom a charged and arrested individual will come into contact.

It is in the act of determining bail where the MDJ has the most influence. They, in most instances, retain the authority to determine bail amounts and conditions from when a person is arrested through the conclusion of the Preliminary Hearing. The Pennsylvania bail rules set out criteria to be considered in determining bail amounts and/or conditions. Many of the criteria are subjective and MDJs have very broad discretion in considering and applying them. The bail criteria, when properly applied, can serve the goals of bail … assuring future court appearances of the person charged, avoiding further criminal conduct, and supporting public safety. However, if not properly applied, bail amounts and/or conditions can result in unnecessary and unfair pre-trial incarceration. Where this occurs, the person charged can be disadvantaged in participating in their representation and defense. Their daily lives can also be dramatically impacted in areas like employment, housing, family relations and treatment, to name a few.

MDJs also preside over traffic matters and civil matters, including small civil actions and landlord tenant disputes, including evictions. In these areas, their judgement and temperament can have a dramatic impact on the person before their courts.

Common Pleas Judges must be licensed attorneys. They preside in trial courts and their role may be more familiar than that of Magisterial District Judges. They hear cases involving areas such as domestic relations, civil litigation, estates, and criminal charges. From a social justice perspective, I will discuss the criminal court’s function, but, certainly, all matters before a Common Pleas Judge may have social justice implications.

In criminal matters in the Court of Common Pleas, Judges primarily preside over Motions, Pleas, Trials, and Sentencings.

Once a case has passed the Preliminary Hearing stage in the MDJ Court, a Common Pleas Judge has the responsibility of all legal decisions that must be made. A Common Pleas Judge has the authority to modify bail amounts and conditions and to address all pre-trial motions, including, but not limited to, disputes regarding Constitutional rights, production of evidence, and admissibility of evidence. Where a matter results in a guilty plea, which, according to the US Supreme Court, happens approximately 95% of the time, a Common Pleas Judge must determine if the agreement is fair and reasonable, is factually supported, and if the person charged is making a knowing and voluntary plea. Only if the Court finds that these factors exist can they approve the plea and any agreed sentence.

Where a case goes to trial, the person charged may opt for a non-jury or jury disposition. In a non-jury trial, the Judge hears the evidence and decides both the legal issues and whether the Commonwealth has met the factual burden of proof. Where a case is presented to a jury, the jury is the finder of fact, but the judge decides all legal issues arising during the trial. The judge directs how the trial proceeds in the courtroom. Among other functions, the Judge instructs the jury in proper procedure, the definitions of the charges, and the relevant legal principles they will employ in making factual determinations.

A critical role of a Common Pleas Judge is determining appropriate sentences. The Court determines the sentence in some guilty pleas and in all jury or non-jury trials where there is a finding of guilt. The Constitution requires that most sentences be individualized, and the Judge must consider many factors, including, the charge and facts, victim impact, and the history, background, and circumstances of the person convicted. The exception to this process is the few areas where the legislature has created mandatory sentences for specific criminal offenses. In those cases, the Judge has no discretion and must impose the prescribed mandatory sentence. In all other instances advisory sentencing guidelines suggest the parameters of appropriate sentences. Judges have substantial discretion in structuring sentences. Sentences can include not only periods of incarceration or probation but also conditions such as counseling, treatment, and restitution. From a social justice standpoint, the impact of sentencing is paramount. Is balance achieved between punitive aspects and the rehabilitation of the defendant?

Briefly, the appellate courts address matters of law and policy on a higher level than can occur in Common Pleas court. The appellate court Judges and Justices have the discretion to broadly interpret and to make changes in law and precedent.

The question for us as citizens concerned for social justice is, how do we decide to best use our vote in the election of an MDJ, Common Pleas Judge or an appellate judge, or for the retention of a Common Pleas Judge or appellate Judge or Justice?

Many individuals who do not fully understand the broad impact of Judges will simply vote by political party or name recognition.

It is suggested that we need to be more discerning.

Some areas to explore are:

What is the candidate’s background and experience?

What is the candidate’s reputation for fairness and civility?

What is the candidate’s judicial philosophy in a broad sense? For example, do they have a stated position on the purpose of bail or sentencing and rehabilitation?

For a Judge facing retention, what trends can be seen in their judicial performance thus far?

For appellate Judges and Justices what are their expressed judicial philosophies in social justice areas? If they are currently serving, what have been their rulings in social justice related cases?

Some sources to obtain answers to these questions are, candidate events, social media, election websites, and endorsements.

To summarize, we need to be good consumers when considering judicial elections. We should use whatever resources are available to us to get the information needed to make informed choices.

Nathan M. Schenker, Esq.