Let Justice Be Bought?: Addressing the Problems of Spending in Pennsylvania Judicial Elections

Noah M. Manalo, Winner of PMC's 2026 Law Student Writing Competition

In January 2026, the Supreme Court of Pennsylvania issued an 4-3 opinion in Gustafson v. Am. Fed’n of State. In Gustafson, Gustafson asserted a claim against her union for breach of its duty of fair representation when it allegedly mishandled a grievance she had with the Commonwealth. The Court held that “under [the Public Employee Relations Act (“PERA”)], [Gustafson’s] remedy is limited to an order from the court compelling AFSCME and the Commonwealth to arbitrate her grievance nunc pro tunc.” Procedurally, the trial court sustained AFSCME’s demurrer preliminary objections. An en banc panel of the Commonwealth Court of Pennsylvania unanimously reversed the trial court’s sustaining of AFSCME’s preliminary objections, finding because it was not “free and clear from doubt” that Gustafson could not proceed on a claim for damages on her duty of fair representation claim against a union where she was clearly seeking damages for the union’s breach because she was not a union member and because such a claim was not an unfair labor practice under the PERA, the trial court erred in sustaining preliminary objections. Ultimately, as noted, the Supreme Court of Pennsylvania reversed the Commonwealth Court  and found Gustafson’s remedy is limited to arbitration. 

Setting aside the legal reasoning of the opinion, the problem of spending on judicial elections is visible in this case. At least $18.7 million was spent on the Supreme Court of Pennsylvania retention elections last year. Narrowing on the issues in this case, Justices Donohue, Dougherty, and Wecht from a Pennsylvania Committee called “Vote Yes for Fair and Independent Courts.”  Each received over $1,000,000 from this Pennsylvania committee. One of the largest donors to this committee was AFSCME, which contributed $250,000 to this campaign. AFSCME and its affiliates are a named parties in Gustafson.  Moreover, the name partner of the law firm representing AFSCME, Deborah Willig, spent $20,000 split between the 2025 retention campaigns of Justices Donohue and Dougherty.  This only accounts for what was spent on this past retention election; potentially, AFSCME, its state and local affiliates, and the law firm may be regular contributors to judicial elections and to some of these judicial candidates overseeing their case or their respective election committees.  

It is true that, in Pennsylvania, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” One reason for disqualification includes if: The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer. In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest. However, recusal motions and applications are reviewed only for an abuse of discretion in Pennsylvania.  And to whom do parties appeal a recusal motion denial by the Commonwealth’s highest jurists on the Supreme Court? 

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