Why do this? These surveys are not designed to be scientific and get honest opinions. They are done solely for the purpose to get a negative rating on unslated candidates that can then be used in party mails to slam the candidates who dare to take on the slate Both party establishments are in cahoots to protect the slating process because judges are a large source of revenue for the parties. On the Republican side, each judge candidates has to pay about $25,000 to the county chairman to be endorsed. Democratic candidates have to pay a similar figure to their party bosses. (This continues to be done despite the fact that the Judicial Qualifications Commission has opined that judges paying a fee to be endorsed as a candidate is a violation of the Judicial Code of Conduct.) For judicial candidates David Hennessy, Greg Bowes, and Kim Brown to be nominated without paying the party bosses is to endanger the whole system. Even though Republicans don't have challenges to the slate this year, they want to defend the system.
If anyone thinks that the survey is not designed to protect slated candidates and trash non-slated candidates, one only needs to look at who sits on the "Judicial Excellence Committee:"
Chair: Andrew Mallon
Members: Tamara McMillian, Ryan Vaughn, Alex Will, Ahmed Young Counsel to the Committee: Tom John Indianapolis Bar Association President: Jeffrey Abrams
As far as the rest of the members of the committee, Tamara McMillian is of counsel with Bingham Greenbaum, one of the big, politically-connected downtown law firms. Ryan Vaughn is a former attorney with Barnes & Thornburg, which pretty much runs the Indianapolis Mayor's Office where Vaughn is now entrenched as Chief of Staff. Tom John is former Marion County Republican Chairman who is now a partner with Ice Miller, another big downtown large firms which has profited greatly from city contracts. Ahmed Young is a deputy prosecuting attorney in Marion County Prosecutor Terry Curry's office. Since his boss greatly benefited from slating used by the establishment, he's not in a position to take it on. The only one who on the surface does not appear to have ties to the establishment that strongly supports judicial slating is new IBA president Jeffrey Abrams, a partner at Benesch, Friedlander, Coplan & Aronoff.
Finally, I should repeat the warning I issued earlier this year that any attorney answering the Indybar JEC survey and writing critically of a judicial candidate, even if he or she is not currently a judge, exposes that attorney to a disciplinary violation under Rule 8.2:
... if you denigrate a judge or judicial candidate's qualifications on a [JEC] survey, you are exposing yourself to a Rule 8.2 disciplinary violation. Rule 8.2(a) says:
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.The Disciplinary Commission takes the position that under Rule 8.2, the burden rests on the attorney to prove that any disparaging statement about a judge's qualifications is true. The DC also takes the position that that rule also applies to opinions about judges. So if you answer on a survey that a judge running for re-election lacks good judicial temperament or does not rule in a timely fashion, you can be charged with a Rule 8.2 violation and then it becomes your burden to prove the judge lacks good judicial temperament and does not rule in a timely fashion. If it turns out you can't, then it becomes your burden to show the false statement was not made "recklessly." Good luck on that one. [Research I did later shows the attorney loses this evidentiary contest 98% of the time] The fact you made the statement without sufficient "evidence" will be deemed by the Commission as confirmation of recklessness.
Don't think for a second that these surveys are private, just between the attorney and the Indianapolis Bar Association, and therefore Rule 8.2 doesn't apply. While the Disciplinary Commission's reasoning changes from day-to-day, it is clear the DC does not believe any private communications are outside the tentacles of Rule 8.2. Nonetheless, as the [JEC] surveys are being conducted expressly for the purpose of publishing the results, an attorney would be hard-pressed to argue his or her survey responses about judges and judicial candidates were intended only for private consumption.
Down the road, the Disciplinary Commission could well demand that the [JEC] surveys and other judicial surveys be turned over to them as part of an investigation of attorneys for violating Rule 8.2. That is no more a far-fetched scenario than the Commission filing a Rule 8.2 charge because an attorney sent a private email criticizing a judge.