Tuesday, September 4, 2012

The Indiana Lawyer Documents Slating Payments Made by Marion County Judicial Candidates; Indianapolis Bar Association Joins Chorus Calling for Reform

In 1992, the Indiana Commission on Judicial Qualifications issued an advisory opinion saying that mandatory slating fees were a violation of the Code of Judicial Conduct's provision forbidding paying assessments to a political party.  The Marion County Republican and Democratic party responded by claiming the slating fees paid by judicial candidates were, in fact, voluntary contributions.  However, in the 20 years that followed, not a single judicial candidate had ever been slated without paying the "voluntary" slating fee.  Retired judges all say the payments were never voluntary...that if you didn't pay the slating fee you didn't get the party endorsement.

Earlier this year, I asked the Judicial Commission to revisit that opinion.  The Commission clarified its opinion, stating that it would look at the timing and amount of the slating payments to determine whether they were truly voluntary.  The Commission noted that if they were all paying the same amount and the timing of the payments were similar, the payments would not be considered voluntary and instead would be a violation of the rules.
Marion County Democratic
Chairman Ed Treacy
An article in the most recent of issue of the Indiana Lawyer follows up on on those standars with some research into the candiciates' financial report.  It also discusses that the movement to reform Marion County's judicial selection system has a new ally, the Indianapolis Bar Association:
The election of 20 Marion Superior judges is little more than two months away, but the 10 slated Democrats and 10 slated Republicans on the ballot needn’t worry too much. They’re all but guaranteed victory. 
That’s in large part because each of them made identical contributions to their respective county political parties, after which they won their party’s endorsement, access to resources and backing in their party slating conventions and primary elections.
Between November 2011 and January 2012, the 10 Democratic candidates for Superior Court judge who were slated at the party’s convention in February each contributed individually or through their committees $13,100 to the Marion County Democratic Central Committee, according to a review of campaign finance records at the Election Division of the Indiana Secretary of State’s office.                             
The records also show each of the 10 Republican judicial candidates who were later slated at the Jan. 28 convention gave $12,000 to the Marion County Republican Central Committee individually or through their committees by Jan. 17. Seven of the 10 paid in full or in part on that date, the date by which all candidates’ final contributions were made, according to the records. Of those, four made identical contributions: $5,000 on Aug. 31, 2011, and $7,000 on Jan. 17.
The reporting leaves out that Republican judicial candidates now apparently have to make an additional $10,000 post-primary payment to the party.  The response from the Marion County Republican and Democratic chairmen to the claim these payments are mandatory is priceless:
Marion County Republican
Chairman Kyle Walker
“There is no official slating mechanism and there’s no slating process,” said county Democratic Chairman Edward T. Treacy. He said candidates for judge who paid $13,100 a piece to the party before the convention did so voluntarily as their share of the county party’s expense. “That money gets spent on those races.”                              
“It’s an absolutely unfair argument,” Republican Party Chairman Kyle Walker said of accusations that the $12,000 contributed by each GOP candidate who was slated represents a pay-to-play system. “Judges don’t buy into this system. They’re asked to make a contribution to cover the costs of the convention” and support from the party, he said.
The article also mentions that the Indianapolis Bar Association is joining the call for reform:
Indianapolis Bar Association President Scott Chinn said its board of directors recently resolved to push anew for reforming the Marion County judicial election and selection process.

Chinn said the IndyBar wants an open discussion that would welcome a variety of opinions about what reform might look like.
To see the rest of the article, click here.

While I welcome Chinn and the Indianapolis Bar Association to the calls for reform, the fact can't be overlooked that an arm of Chinn's IBA, the Judicial Excellence Political Action Committee, which is headed by a partisan Republican, Krieg Devault Partner, C. Joseph Russell, is regularly used to promote slated candidates and deride the unslated candidates who challenge them.   In doing so, JEPAC employs "surveys," which is essentially a self-selecting poll in which attorneys from large law firms, which contribute a great deal of money to the parties and benefit from the current slating system, can easily manipulate the results by flooding JEPAC with positive surveys for slated candidates and negative surveys for unslated candidates.

Long after the deadline and against my wishes (other judicial candidates have been allowed to opt out of the survey process), Russell reopened the surveys to do one on me.  I knew exactly what he was up to.  Not surprisingly given my unslated status and public criticism of the shenanigans of the largest law firm in the State, the politically-connected Barnes & Thornburg, as well as a council candidate and partner at Russell's own large law firm), I received, on 116 surveys returned, an 18% approval rating. I believe that is the lowest rating in history and 1/3 of what the lowest Republican slated candidate received.  Needless to say, a few weeks later the 18% rating was a major allegation in campaign materials against me.  I have little doubt that Russell coordinated the decision to reopen the survey process for my candidacy with Republican county party leadership who wanted campaign fodder to use against me in the primary.

Still it is good to see the IBA advocate for reform.  My guess is we've seen our last Marion County slated judicial candidates.   Personally, I have concerns about "merit selection" as those selection processes often become politics behind closed doors.  I wouldn't have a problem with a wide open election process, unfettered by the bogus "endorsement" from paying tens of thousands of dollars to the party chairman and that follows a slating convention where 82% of the people attending are appointees by the county chairman.  Nevertheless, change is on the way.

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