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It was supposed to be a typical Pennsylvania judicial retention vote. Maybe a few cries from concerned citizens over allegedly questionable rulings. Maybe a couple editorials railing against improper spending of taxpayer dollars. But in the end, the two justices up for retention in 2005 were both expected to be retained, as they always have been in this state. Even in 1993, when the high court as a whole was trying to survive a gantlet of negative press stemming from misconduct allegations against several of its members, then-Justice Nicholas Papadakos was retained that year by a 54 percent majority. But earlier this year the pay raise affair popped up, and it was clear that something about 2005′s retention elections would be different. However, nobody in the legal community could have predicted the shocking outcome: Justice Russell M. Nigro was removed from the court by 51 percent of the vote, the first time a sitting justice has not been retained in an election. And Justice Sandra Schultz Newman was retained by a relatively slim majority of 54 percent. Newman’s son Jonathan, speaking on behalf of his mother, said that she was grateful to have been retained “in a very difficult election cycle with voter animosity about other issues.” Nigro did not immediately respond to a call seeking comment. “This is just not about the judges — the judges are not known directly by people,” said political analyst G. Terry Madonna. “This is guilt by association and augurs of bigger things to come.” “This is the way our democracy works,” said Philadelphia Bar Association Chancellor Andrew Chirls. “The cookie crumbled.” Justice Max Baer said it was “a shame” that his colleague lost his retention election. “The public is enraged over the pay raises,” Baer told The Legal Intelligencer Wednesday morning. “They wanted to take a broom to all of government, and the good goes out with the bad sometimes, I suppose.” Justice Thomas G. Saylor said that his own retention election in 2007 is too far away to be nervous about, telling The Legal Intelligencer that “it’s obvious that, at least this year, more attention was paid to the retention situation for reasons beyond the court’s control.” “I am pleased that Justice Newman was retained, but disappointed that Justice Nigro was not,” Saylor said. “He is a good colleague and a good judge, and will be missed.” ( The Legal Intelligencer attempted Wednesday to reach all the members of the high court; only Baer and Saylor agreed to be interviewed personally. Justice J. Michael Eakin declined to comment, the rest did not return calls seeking comment.) Veteran Philadelphia attorney George Bochetto said that he was with Nigro Wednesday night as the election results came in. “He was remarkably poised,” Bochetto said of his friend’s demeanor as the number of “no” votes began to pile up. “He understood clear as a bell that the vote had nothing to do with him as a justice of the Supreme Court, but was purely and simply a backlash of the voting public over this pay-raise thing.” In retrospect, there were signs early on of this week’s unprecedented result. The first was the advent of groups vehemently opposed to the retentions of Justices Russell M. Nigro, a Democrat, and Sandra Schultz Newman, a Republican. Call them special interest groups, call them civic advocacy associations, call them political watchdog teams. They wanted the pair off the bench and they weren’t quiet about it. The second was the amount of money involved in the justices’ campaigns for retention. According to campaign finance reports, Nigro had raised just under $400,000 for this year’s retention election as of Oct. 24. (As of that date, he had spent only $15,000 of that money on a Washington, D.C.-based market research firm; but the latest reports available do not reflect money spent in the final weeks leading up to the election on items such as TV ads.) Newman took in more than $240,000 last week alone, and sponsored TV spots featuring a voiceover by Tom Ridge, the former Pennsylvania governor and former U.S. Homeland Security secretary, the Associated Press has reported. (The Newman campaign finance reports released by the Pennsylvania Department of State do not reflect any donations as of Oct. 24 and only miniscule expenditures as of that date.) Baer — who, according to campaign finance reports, spent at least $1.5 million over the course of his successful 2003 bid to become a justice — said it was significant that Nigro and Newman have raised so much money during retention campaigns. Jonathan Newman said that his mother raised just over $300,000 by the time the election took place. All the money she received, he said, was donated roughly within the week before the election. He said that the furor over the pay raise had “100 percent” to do with his mother’s decision to raise money for media ads so close to election time. “We just felt that we weren’t getting a chance to get a positive message across … because of all the stuff that was getting into the press about the pay raise issue,” said Jonathan, who serves as chairman of the Pennsylvania Liquor Control Board. The list of Nigro’s donors reads like a veritable Who’s Who of the Philadelphia legal world. Criminal defense attorneys, corporate litigators, plaintiffs lawyers and more — all gave generously to his campaign. Some of the bigger contributions included $20,000 from the political action committee of Miller Alfano & Raspanti; $20,000 from Sprague & Sprague; $20,000 from Hangley Aronchick Segal & Pudlin; $20,000 from Naulty Scaricamazza & McDevitt; $10,000 from Ballard Spahr Andrews & Ingersoll; $10,000 from Fox Rothschild; $10,000 from Bochetto personally; $10,000 from Swartz Campbell; and $10,000 each from one partner at Klehr Harrison Harvey Branzburg & Ellers, one partner at Stradley Ronon Stevens & Young and two partners at Marshall Dennehey Warner Coleman & Goggin. There were no solid answers as to why Newman was retained and Nigro wasn’t. Baer wondered out loud whether the candidates’ provenance, gender or ages factored into voters’ decisions. Mark Phenicie, the Harrisburg-based legislative counsel for the Pennsylvania Trial Lawyers Association, and Madonna, director of the Center for Politics and Public Affairs at Franklin & Marshall College, both said that the Ridge ads and Newman’s gender may have been factors in voters’ decision to retain her and not Nigro. The Ridge ads, Madonna said, may have been particularly effective in traditionally conservative parts of the state. County-specific results released by the Pennsylvania Department of State show that in the Philadelphia metropolitan area, “no” votes against the justices were in the 20 to low-30 percent range. But in counties like Dauphin, Lancaster, Westmoreland and York, the voters rejected both jurists by ratios of at least mid-60s percent, often higher. Phenicie said he was not surprised that Nigro was defeated and Newman was barely retained. “People who live up here — we saw it” coming, Phenicie said. Phenicie described central Pennsylvania as the epicenter of the anti-government, anti-pay-raise movement, and attributed the retention-election results to high voter turnout there and low voter turnout in the Philadelphia area. Bochetto said Nigro’s ouster marks a defeat for the “common guy.” Nigro, 59, was born in Philadelphia. He received his undergraduate degree from Temple University and his law degree from Rutgers School of Law. He practiced privately from 1973 until 1987, when he was elected to the Philadelphia Common Pleas Court. He was elected a justice in 1995. “For all of us who did not grow up on the Main Line with a silver spoon in our mouths, it’s a big loss,” said Bochetto. But there are, of course, those who are pleased that Tuesday night’s results will send a message that the average voter is displeased with state government. “I think that the voters fully understand what’s going on here,” Russ Diamond, chairman of PACleanSweep, a political action committee that aims to challenge every incumbent legislator in next year’s elections, told the Associated Press. Groups like PACleanSweep have used the pay raise issue as a means of highlighting a bigger one, according to Madonna: the perceived silent agreement between the General Assembly and the high court to let the Legislature run amok. Such groups regard the state Supreme Court as being too deferential to state legislators, he said. Lynn Marks, executive director of Pennsylvanians for Modern Courts, also said she believes the “no” vote campaign was based on the perception that the high court has been too closely tied to the Legislature. “This view, whether accurate or not, fueled voter behavior and resonated with people,” Marks said.

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