By Amaris Elliott-Engel
Of the Legal Staff
The unprecedented strength of Democratic candidates in the Montgomery Court of Common Pleas race has inspired pushback from the Montgomery County Republican Committee.
County GOP Chairman Robert J. Kerns alleged last week in a press release that the seven Democratic candidates running for Montgomery County Court of Common Pleas have committed violations of the state Judicial Code of Conduct. Tom Gailey, a spokesman for the MCRC, said Friday the MCRC is considering filing a formal complaint but has not yet done so.
Shira Goodman, of the nonpartisan group Pennsylvanians for Modern Courts, and Gregory Harvey of Montgomery McCracken Walker & Rhoads, who has represented Democrats in election litigation, both noted that the Republicans, who have controlled county politics for generations, are facing stiff competition in local judicial races for the first time from Democrats, who now have 30,000 more registered voters than the GOP.
"It seems to me that this attack demonstrates, bear in mind I'm a Democrat but I'm not involved in the Montgomery County judicial race … this seems to me that they're seriously concerned for the first time since the Civil War the Montgomery County Republicans might lose a judicial election in Montgomery County," Harvey said.
The Republicans in their press release leveled four major charges against the Democratic slate. Following is a breakdown of the charges, the Democrats' responses and some third-party observations including opinions from the ethics committee of the State Conference of Trial Judges.
I. Between Feb. 2 and May 4, the Republican committee says, the seven Democratic endorsed candidates -- Lois Murphy, Michael Shields, Richard Haaz, Cheryl Austin, Ann Thornburg Weiss, Joel Bernbaum and Jeff Lindy -- contributed thousands of dollars either personally or through their campaign committees to a joint political action committee called the Montgomery County Democratic Judicial Slate Committee. The candidates then had the money refunded to them or their campaign committees, and the PAC was closed based on the termination report filed with the Department of State. While candidates are permitted to contribute to party organizations like the Montgomery County Democratic Committee, they are not permitted to contribute to candidates or other PACs according to Canon 7, Section A (2).
Democrats have responded that each of the candidates established a committee to solicit and receive funds on behalf of candidates, and the slate agreed to forward monies to a joint committee in order to promote the entire slate in the campaign. The various opinions of the State Conference of Trial Judges' ethics committee were ambiguous on whether candidates for the same judicial office can form a joint committee for purposes of promoting their entire slate and to receive campaign contributions for the slate.
When Bernbaum received an ethics opinion in March from the State Conference of Trial Judges that a joint committee could not receive contributions from third parties, the joint PAC was dissolved the same month. The money that each of the candidates or their committees had paid into the joint PAC was returned. The termination of the PAC was filed at the earliest possible stage during the next campaign cycle, which was in May.
Candidates on the Democratic slate are still coordinating resources, but the candidates are paying money to the Montgomery County Democratic Committee, and the committee is then paying for the joint campaign expenditures. Each candidate is maintaining their own campaign committee and filing his or her own campaign finance reports.
Mercer County Common Pleas President Judge Francis J. Fornelli wrote in a March 26 letter in response to Bernbaum's request for an ethics opinion on whether the Democratic slate could form a joint committee and receive contributions from third parties to spend on the slate's joint campaign efforts.
Fornelli wrote that issues of recusal resulted in "impracticality of ethically permitting joint committees." Fornelli suggested that an ethical conflict between one judge and a donor to the joint committee would require the recusal of all the judges who received a contribution through the joint PAC. Fornelli asked: "How does each judge and the public know which judge is the object of the donation to the joint committee?"
Fornelli wrote that some joint coordination between candidates running for the same judicial office is allowable:
A judge's campaign committee may contribute to the campaign committee of other candidates running for the same judicial office.
Judicial candidates for the same office may conduct a joint election campaign involving joint direct mail, radio and television advertising. However, each candidate must have a separate campaign committee and separately file campaign finance statements.
Joint fundraisers between candidates running for the same judicial office are allowable.
Joint campaign appearances and joint endorsements are allowable
Joint campaigning by judges running for retention for the same office is allowed.
Goodman said that judicial campaigns have jointly footed bills for a long time, but that campaigns have to be very careful in poling their resources. She also said mandatory ethics training for judicial candidates might have helped the candidates avoid getting into trouble with forming the now-dissolved PAC.
II. The Montco GOP has also charged that according to Lindy’s 30-day post-primary report filed with the Department of State, he contributed a total of $350 to two candidate committees on June 8. That is a violation, the Republicans say, because judicial candidates are not permitted to contribute to candidates or other PACs.
Democrats, in response, have said that both of those expenditures were made by Lindy in order to attend political dinners where he could promote his candidacy. One dinner was organized by state Rep. Josh Shapiro, D-Montgomery, and one dinner was organized by Diane Morgan, the Montgomery County Controller.
According to an ethics committee digest opinion from 2001, a judicial candidate may make a contribution to the campaign of another candidate by buying tickets to events in order for the judicial hopeful to promote their own candidacy.
III. Montco GOP leaders also say that Bernbaum’s campaign sent around an e-mail inviting people to a fundraiser for him. The e-mail asks for the support of the other six Democratic candidates. Canon 7, Section A (2) allows candidates to speak on behalf of their running mates but not campaign for them and identify information about them such as party affiliation, including in mass distributions like e-mails.
The Democrats said that the Republicans are also conducting a joint election campaign, and it's appropriate to conduct a joint election campaign when candidates are running for the same office.
A March 2005 ethics committee digest opinion reads: "[J]udicial candidates for the same office may conduct a joint election campaign, including joint direct mail and radio and television advertising. Each candidate would also conduct his or her individual campaign. Each judge must have a separate campaign committee and separately file campaign finance statements.”
IV. Austin's campaign committee distributed a sample ballot to voters’ homes in the primary election that listed all of the candidates in ballot order and then provided additional information about each candidate, including party affiliation, bar association ratings, political endorsements and "potentially negative information about one fellow Democrat.” This flyer violates Canon 7, Section A (2) because Austin took the extra step to paint in a negative light to voters other candidates for the same office.
According to the Democrats, the "potentially negative information about one fellow Democrat" referenced in the flyer was the fact that Phil Berg, who was not endorsed by the MCDC, had filed a lawsuit alleging that President Obama is not a natural-born U.S. citizen. And, Democrats said, it is permissible to publish information that is true about another candidate.
Harvey said that the information included on the sample ballot was pertinent to Berg's qualifications to seek judicial office and was appropriate to include on the sample ballot.
Of the Legal Staff
The unprecedented strength of Democratic candidates in the Montgomery Court of Common Pleas race has inspired pushback from the Montgomery County Republican Committee.
County GOP Chairman Robert J. Kerns alleged last week in a press release that the seven Democratic candidates running for Montgomery County Court of Common Pleas have committed violations of the state Judicial Code of Conduct. Tom Gailey, a spokesman for the MCRC, said Friday the MCRC is considering filing a formal complaint but has not yet done so.
Shira Goodman, of the nonpartisan group Pennsylvanians for Modern Courts, and Gregory Harvey of Montgomery McCracken Walker & Rhoads, who has represented Democrats in election litigation, both noted that the Republicans, who have controlled county politics for generations, are facing stiff competition in local judicial races for the first time from Democrats, who now have 30,000 more registered voters than the GOP.
"It seems to me that this attack demonstrates, bear in mind I'm a Democrat but I'm not involved in the Montgomery County judicial race … this seems to me that they're seriously concerned for the first time since the Civil War the Montgomery County Republicans might lose a judicial election in Montgomery County," Harvey said.
The Republicans in their press release leveled four major charges against the Democratic slate. Following is a breakdown of the charges, the Democrats' responses and some third-party observations including opinions from the ethics committee of the State Conference of Trial Judges.
I. Between Feb. 2 and May 4, the Republican committee says, the seven Democratic endorsed candidates -- Lois Murphy, Michael Shields, Richard Haaz, Cheryl Austin, Ann Thornburg Weiss, Joel Bernbaum and Jeff Lindy -- contributed thousands of dollars either personally or through their campaign committees to a joint political action committee called the Montgomery County Democratic Judicial Slate Committee. The candidates then had the money refunded to them or their campaign committees, and the PAC was closed based on the termination report filed with the Department of State. While candidates are permitted to contribute to party organizations like the Montgomery County Democratic Committee, they are not permitted to contribute to candidates or other PACs according to Canon 7, Section A (2).
Democrats have responded that each of the candidates established a committee to solicit and receive funds on behalf of candidates, and the slate agreed to forward monies to a joint committee in order to promote the entire slate in the campaign. The various opinions of the State Conference of Trial Judges' ethics committee were ambiguous on whether candidates for the same judicial office can form a joint committee for purposes of promoting their entire slate and to receive campaign contributions for the slate.
When Bernbaum received an ethics opinion in March from the State Conference of Trial Judges that a joint committee could not receive contributions from third parties, the joint PAC was dissolved the same month. The money that each of the candidates or their committees had paid into the joint PAC was returned. The termination of the PAC was filed at the earliest possible stage during the next campaign cycle, which was in May.
Candidates on the Democratic slate are still coordinating resources, but the candidates are paying money to the Montgomery County Democratic Committee, and the committee is then paying for the joint campaign expenditures. Each candidate is maintaining their own campaign committee and filing his or her own campaign finance reports.
Mercer County Common Pleas President Judge Francis J. Fornelli wrote in a March 26 letter in response to Bernbaum's request for an ethics opinion on whether the Democratic slate could form a joint committee and receive contributions from third parties to spend on the slate's joint campaign efforts.
Fornelli wrote that issues of recusal resulted in "impracticality of ethically permitting joint committees." Fornelli suggested that an ethical conflict between one judge and a donor to the joint committee would require the recusal of all the judges who received a contribution through the joint PAC. Fornelli asked: "How does each judge and the public know which judge is the object of the donation to the joint committee?"
Fornelli wrote that some joint coordination between candidates running for the same judicial office is allowable:
A judge's campaign committee may contribute to the campaign committee of other candidates running for the same judicial office.
Judicial candidates for the same office may conduct a joint election campaign involving joint direct mail, radio and television advertising. However, each candidate must have a separate campaign committee and separately file campaign finance statements.
Joint fundraisers between candidates running for the same judicial office are allowable.
Joint campaign appearances and joint endorsements are allowable
Joint campaigning by judges running for retention for the same office is allowed.
Goodman said that judicial campaigns have jointly footed bills for a long time, but that campaigns have to be very careful in poling their resources. She also said mandatory ethics training for judicial candidates might have helped the candidates avoid getting into trouble with forming the now-dissolved PAC.
II. The Montco GOP has also charged that according to Lindy’s 30-day post-primary report filed with the Department of State, he contributed a total of $350 to two candidate committees on June 8. That is a violation, the Republicans say, because judicial candidates are not permitted to contribute to candidates or other PACs.
Democrats, in response, have said that both of those expenditures were made by Lindy in order to attend political dinners where he could promote his candidacy. One dinner was organized by state Rep. Josh Shapiro, D-Montgomery, and one dinner was organized by Diane Morgan, the Montgomery County Controller.
According to an ethics committee digest opinion from 2001, a judicial candidate may make a contribution to the campaign of another candidate by buying tickets to events in order for the judicial hopeful to promote their own candidacy.
III. Montco GOP leaders also say that Bernbaum’s campaign sent around an e-mail inviting people to a fundraiser for him. The e-mail asks for the support of the other six Democratic candidates. Canon 7, Section A (2) allows candidates to speak on behalf of their running mates but not campaign for them and identify information about them such as party affiliation, including in mass distributions like e-mails.
The Democrats said that the Republicans are also conducting a joint election campaign, and it's appropriate to conduct a joint election campaign when candidates are running for the same office.
A March 2005 ethics committee digest opinion reads: "[J]udicial candidates for the same office may conduct a joint election campaign, including joint direct mail and radio and television advertising. Each candidate would also conduct his or her individual campaign. Each judge must have a separate campaign committee and separately file campaign finance statements.”
IV. Austin's campaign committee distributed a sample ballot to voters’ homes in the primary election that listed all of the candidates in ballot order and then provided additional information about each candidate, including party affiliation, bar association ratings, political endorsements and "potentially negative information about one fellow Democrat.” This flyer violates Canon 7, Section A (2) because Austin took the extra step to paint in a negative light to voters other candidates for the same office.
According to the Democrats, the "potentially negative information about one fellow Democrat" referenced in the flyer was the fact that Phil Berg, who was not endorsed by the MCDC, had filed a lawsuit alleging that President Obama is not a natural-born U.S. citizen. And, Democrats said, it is permissible to publish information that is true about another candidate.
Harvey said that the information included on the sample ballot was pertinent to Berg's qualifications to seek judicial office and was appropriate to include on the sample ballot.
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