Slating and the Selection of Marion County Judges by County Chairmen: It is Time for the General Assembly to Reform the System

Marion County, Indiana employs a selection process for its trial judges that is not found anywhere else in the world.  This past November, candidates for Marion County Superior Court judge appeared on the general election ballot.  Under Indiana law, both the Republicans and Democrats nominated 10 candidates.  Twenty are elected.  You do the math.  General election voters have no say on who is elected.

Surprisingly the fact that the general election voters have no say in who gets elected is not the worst part of the system.  The other part relates to another Marion County anomaly - party slating.

Slating is a process by which party workers endorse candidates to support in the primary.  At least that is the theory.  In reality, elected precinct commitment, who do the grunt work in the party, are a minority at slating conventions. Because of changes in the rules over the years, the party organizations are filled with vacant positions to which Marion County Chairmen (both parties locally have slating) can appoint "mummy dummies" to go to slating and vote for the "right" candidates, i.e. who the chairman wants. In the last Republican county wide slating convention, at which judges were slated, over 82% of the people eligible to vote were appointments of the county chairman.

It is virtually impossible to overcome slating at a primary, especially in a countywide, low profile race for judge, a fact I know very well as a nonslated Marion County judicial candidate in 2012..  To win it is virtually mandatory that one do several countywide mailings to Republican primary voters, mailings that would cost easily run up to a hundred thousand dollars.  But the party chairmen this time made sure even that couldn't happen.  During a maneuver this spring, the three person Marion County Election Board, which is dominated by appointees of the two county chairmen, voted to block the Marion County Board of Registration from having to provide nonslated candidates a list of Republican voters and contact information. Meanwhile the slated candidates received from the Board of Voter Registration, albeit indirectly, names of Republican primary voters, voting histories, addresses, phone numbers, emails, etc.

To show the contempt the county chairmen and their minions on the Election Board have for anyone challenging the slate, the Marion County Election Board ordered that officials seize the literature of unslated Democratic state representative candidate Zach Mulholland.  The fact that federal Judge John Tinder had explicitly enjoined the Board from enforcing the anti-slate law didn't matter stop the two Marion County Chairmen, the three attorneys that make up the Marion County Election Board from enforcing the anti-slate law.   They knew perfectly well their actions were illegal but that any remedy would be too late.

But believe it or not, judicial slating has a worst facet.  To get slated, Republican judge candidates had to pony up $13,100 apiece before the slating convention.  (Democrats had to put up a similar amount.)  Following the election, the Republican judge candidates are to pony up another $10,000 apiece.

Some twenty years ago, the Indiana Judicial Commission opined that such mandatory slating payments were a violation of the Code of Judicial Conduct.  The county chairmen responded by claiming that the fees are "voluntary," a claim that is disputed by former judges who went through slating.   In fact, in the 20 years since that opinion was issued, not a single Marion County Republican or Democratic judge has been slated without paying the slating fee.  Sounds pretty "mandatory" to me.

The steep, obviously mandatory slating fees challenge the independence of the Marion County judiciary.  That is a fact noted by Governor Mitch Daniels who, upon swearing in Justice Mark Massa to the Indiana Supreme Court, went out of his way to criticize the Marion County judicial slating system as a "travesty" that amounts to "purchasing judgeships."  Shortly thereafter Chief Justice Brent Dickson also criticized it.  Now the Indianapolis Bar Association has come out for reform of the Marion County system of selecting judges.  (Ironically an IBA political action committee, JEPAC, works to help elected slated candidates.)   The good government group, Common Cause, represented by the ACLU of Indiana, has filed a federal suit over the system that leaves general election voters without a say in who going to be sitting on the local bench.

Despite this system, Marion County has many fine trial judges.  However, there is no getting around the corrupting nature of these judges having to solicit substantial sums of money, mostly from lawyers with cases in the Marion Courts, in order to pay the county chairmen the fee required for their blessing. The judges will tell you, off the record, how much they despise the process and wish for something better. But in the end, incumbent judges understandably aren't willing to risk their jobs by telling the county chairmen "No" when they ask them to pony up $25,000 to be a Marion County Superior Court judge.

It is time the Indiana General Assembly take up the issue and look at comprehensive reform.  While I have concern over the design of some merit system, that simply put politics behind closed doors, there has to be better alternatives to the current system which, when combined with slating, amounts to county chairmen picking the judges.  We can do better.  We must do better.