Friday, October 10, 2014

Federal Court Strikes Down How Judges are Elected in Marion County; Is Judicial Slating the Next to Fall?

Federal District Court Judge Richard Young yesterday handed down an opinion striking down Marion County's process for electing judges as a violation of the First Amendment.

That process involved Republicans and Democrats each nominating exactly half the candidates and all the candidates so nominated automatically winning the general election. Thus, if you were a voter who only cast a ballot in the general election, you'd have no say in the selection of Marion County judges.

The decision is likely to be appealed to the Seventh Circuit. I think, however, it is unlikely to be overturned.  If it is not overturned that means the Indiana General Assembly will need to revisit the issue of how the judges are selected in Marion County.  The legislature can go to an election process in which all judges are elected county-wide which would likely result in all Marion County judges being Democrats.  That's not likely to happen though with a Republican legislature and a Republican governor. Or the General Assembly can opt to elect judges by districts or install a so-called merit system which has been done in some counties.  Unfortunately, merit systems does not eliminate the inevitable politics involved in judicial selection.  It often just puts those politics behind closed doors.

Besides the issue of electing Marion County judges in the general election, you have the related issue of judicial slating in Marion County, which involves the payment of hefty fees to party bosses in order to receive the party organization's endorsement.   In January of 2013, I reviewed campaign reports and summarized those payments as follows:
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.
In 1992, the JQC had opined that the practice of paying mandatory slating fees was a violation of the Judicial Code of Conduct.  Twenty years later I asked the JQC to revisit in light of the fact that the payment of these fees as evidenced by twenty years of history showed they were mandatory and thus a violation of the Judicial Code of Conduct.  The JCQ in a letter dated April 2012, confirmed its earlier opinion and then reiterated a set of factors it would look at to determine if the fees paid were mandatory:
While not an exhaustive list, some of the factors the Commission believes are important to evaluate when considering whether a payment is voluntary include the timing of the payment, particularly if it must be paid by a certain time, such as before a slating convention, whether anyone from the political party communicated to the judicial candidate that the payment is expected, and whether the amount contributed by all judicial candidates during an election cycle is the same (assuming o further explanation for the coincidence.
In a piece I wrote in May of 2012, I outlined how those factors compared to what happened during the judicial slating that took place that year:
  • All of the endorsed candidates paid a $12,000 slating fee  (I found out later that there was an additional fee paid that had to be paid after the election.)
  • All paid the slating fee before the slating convention.
  • The party communicated to the candidates the amount of the slating fee before the slating convention. 
  • Judicial candidates, like candidates for other offices, were not provided a list of voters at the slating convention until the slating fee was paid.
  • The slating fee equals 10% of a judges annual salary. Slating fees always are 10% of the annual salary of the office that is sought.
  • The party, like with all slating contests, refunds 80% of the slating fee for judges if they're not slated and do not run in the primary.  If they run in the primary, the party keeps 100% of the $12,000.  If it were a voluntary political contribution, why would they ever refund the money?
I understand from very good sources that a complaint against the Marion County slating process remains pending before the JQC and was put on hold pending the outcome of yesterday's case.  Hopefully the JCQ will now find the slating fees that have been paid to be a violation of the Judicial Code and have that decision ratified by the Indiana Supreme Court.  I think that is quite likely coming down the road.

Meanwhile, in light of yesterday's decision, the Indianapolis Bar Association issued a statement yesterday, published on the Indiana Law Blog website:
The Indianapolis Bar Association (“IndyBar”) is reviewing Judge Young’s decision holding unconstitutional Marion County’s current system for selecting judges. For more than twenty years, the IndyBar has taken an active interest in the best methods of selecting judges in Marion County. Through its Attorneys for an Independent Bench (AIB) Committee, the IndyBar intends to offer its assistance in crafting a remedy to address the Judge’s decision. Marion County has been well served by its excellent judges over the years, and inclusive engagement of all interested parties in creating a new judicial selection method will ensure that continues.
You have to remember the Indianapolis Bar Association has been silent on any sort of meaningful reform of the selection process for Marion County Judges, has refused to condemn slating, including the payment of slating fees in violation of ethical rules, and has actively provided cover for party bosses' handpicked judicial candidates through the use of an easily manipulated survey process.  And now the Indianapolis Bar Association wants to be a player in reforming the system?

Note: Special thanks to Indiana Law Blog for providing the link to the Indianapolis Bar Association statement and Judge Young's opinion.

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