Tuesday, February 25, 2014

Indianapolis Bar Association Prepares to Trash Unslated Candidates; Critical Comments on Judicial Surveys Subject Attorneys to Discipline

The Indianapolis Bar Association ("Indybar") should be ashamed of itself.  Three candidates for judge have filed to challenge the Democratic slate.  Even though these candidates apparently have not agreed to be part of the Indybar survey, and may not even have provided biographical information, the "Judicial Excellence Committee" has decided to reopen up the surveys to rate the unslated candidates.

Make no mistake about it.  These surveys are not scientific.  Because the biggest law firms in the state are located in Indianapolis, it is easy for those firms, which are part of the party establishment which supports party bosses picking the judges through slating, to dominate the survey process.  Given the low number of responses and the large size off the big downtown law firms, its inevitable that an unslated candidate running against the status quo will be trashed.

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
Andrew Mallon is a Democratic attorney who represents the Election Board.  Although Mallon seems like a decent fellow who unfortunately often finds himself defending the very political work of his client, I don't think Mallon would do anything that would help out unslated candidates.  In fact, he was counsel for the Election Board when they voted 3-0 to order unslated House candidate Zach Mulholland's literature seized in violation of the Slating Statute, even though the Election Board (all of which are attorneys) knew full well there was a federal court order prohibiting the Election Board from enforcing it.

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.


LamLawIndy said...

Paul, the slate can be beat. Judge Kim Brown beat it. Judge Linda Brown beat it. The late Z. Mae beat it. The slate isn't all-powerful. Yes, it's a leg up, but it isn't an adamantite shield.

And the survey is inside baseball: will the average primary voter remember the survey results or the fact that a candidate or campaign volunteer knocked on his/her door?

Of course, slating can be improved. I've suggested often that only elected PCs be allowed to vote at caucuses or at the least that only PCs that physically reside in their precincts be given caucus votes. This year at slating, we had judicial officers as watchers, which was a welcome sight and needed improvement from the shenanigans of 15 years ago.

No system is 100% perfect, but our system is more in keeping with our State's Jacksonian heritage than is direct appointment (no disrespect to Lake & St. Joe Counties, where appointment seems to work well 4 them).

LamLawIndy said...

Oh, & I forgot to mention Andrew Mallon. He's an excellent attorney with a difficult.job. I respect his work enormously and - what's more - his temperament. He's patient & respectful in situations that can be tense.

Paul K. Ogden said...

Lam, there is no comparison between slating today and 15 years ago. 15 years ago, virtually every race was contested in slating and most of the people going to slating were actual elected or working PCs. Now it's about 20% at best. Only very few slatings are contested. People know it's fixed going in. Having watchers is meaningless as the contest is fixed before the slating convention. If the county chairman wants someone slated, he just appoints a slew of PCs to open vacancy slots.

Winning in a primary against the slate is virtually impossible. It generally can only be pulled off by women, with names low in the alphabet, and who have common names. It has nothing to do with the quality of the campaign they run. It has to do with voters tendencies to vote names higher in the alphabet and to vote for women over men when they don't know the candidates.

Paul K. Ogden said...

Oh, and while responding to the judicial survey is "inside baseball" you're missing that the importance of it is to get negative results to hammer the non-slated candidates in negative mailings and advertisements. So it's not inside baseball after all.

LamLawIndy said...

I never contended that beating the slate is easy, but I think "virtually impossible" is a stretch. Yes, both Judge Linda Brown and Judge Kim Brown are women with surnames that begin with the letter "B," but both are also hard campaigners. Their victories against the slate cannot be chalked up to gender & name. And the late Judge Z. Mae Jimison's surname certainly didn't place her at a top of a ballot, as "J" is near the middle of the alphabet.

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