Saturday, March 15, 2014

Star Report Asks If Marion County Judges "Pay To Play"

The Star's Marisa Kwiatowski has an in-depth report titled, "Money, politics and judges: Do judicial candidates pay to play?", on the judicial slating process utilized by both the Democratic and Republican Parties of Marion County to select judicial candidates. The state's Judicial Code of Conduct supposedly prohibits judges from paying slating fees to political parties as a condition to their candidacy, but that's precisely how the system has worked in Indianapolis for decades. Kwiatowski's story mentions that two judges expressly labeled expenditures from their campaign committees as "slating fees," while other candidates used other words, such as "fees," "payments" or "expenses" to identify what every attorney practicing law in Marion County understands is a slating fee.
An Indianapolis Star analysis of campaign documents raises questions about a long-standing practice in Marion County, where the major political parties ask judicial candidates seeking endorsement to pay $12,000 to $14,000. Critics say such contributions create the appearance of a pay-to-play system — one they feel is too heavily influenced by politics, veers perilously close to crossing ethical lines and could invite conflicts of interest on the bench. What’s more, they argue that the state law that created Marion County’s unique judicial selection system disenfranchises voters.
Some question how voluntary such contributions really are in Marion County, where a party nomination all but ensures a seat on the bench.
“My reaction to this is, the perception is, it is kind of blood money,” said Charles Geyh, professor of law at the Indiana University Maurer School of Law in Bloomington. “It is money they feel like they have to give. There isn’t any meaningful alternative.”
They contend it is time to overhaul the system to remove the influence of politics and money.
That’s a goal others say is virtually unachievable.
Officials say the political parties provide a valuable service by vetting judicial candidates for voters and keeping election costs down. They argue that judicial candidates aren’t forced to pay fees, and the money they do pay is used to cover legitimate election costs. The law that created the current system, in fact, was designed to limit the influence of money and politics in the selection process.
But when financial statements of people who want to be judges appear to conflict with the rules, questions inevitably persist . . . 
Every endorsed judicial candidate who ran on the Democratic ticket in 2012 paid at least $13,100 to the Marion County Democratic Party, a Star analysis found. Democratic candidates who were endorsed or sought endorsement for the 2014 judicial election cycle each paid $14,000.
Republicans who were endorsed for judicial office in 2012 each paid at least $13,500 to the county political party. Most paid more than $20,000. For 2014, each endorsed candidate is expected to pay the Marion County Republican Central Committee at least $12,000 “to help defray the cost of the endorsement process and the collective campaign,” according to the party’s standing rules.
The idea that the political parties vet the qualifications of judicial candidates beyond ensuring that they meet the minimum statutory eligibility requirement is laughable. In both political parties, a small committee of attorneys, who serve the role of vetting judicial candidates, are comprised of political hacks who make their choices based on purely political motivations. Theoretically, the individual precinct committeepersons get to vote on their choice of judicial candidates, but most PCs are appointed by the county chairman, often don't live within the geographic boundary of the precinct they represent and vote however they're told to vote by the party's leadership. The professional qualifications of a judicial candidate is less important to most PCs than their personalities and how they are perceived by the "powers that be." At this year's Republican slating convention, PCs essentially decided who the single odd guy out would be since only one more candidate ran to be slated than the number to be chosen. If the judicial qualifications committee isn't behind you, it's pretty much a waste of time to run. Personally, I think the process that judges are forced to undergo to get slated by their respective political parties is very demeaning, if not highly unprofessional. I don't fault the judicial candidates though. Practically speaking, they have to go along with the unseemly process if they hold any hope of  ever becoming a judge in Marion County.

As the Star article points out, most voters have no role in the selection of judges since most people don't participate in primary elections. Republicans and Democrats each nominate half the number of superior court judicial positions to be filled in the general election, meaning that the candidates nominated in the primary are automatically elected by default before the general election is even held. It's very rare that a candidate who runs against the slate gets nominated. Judge Kim Brown ran against the Democratic slate six years ago and won, but a complaint submitted by her fellow judges with the Judicial Qualifications Commission resulted in her ouster from office. Paul Ogden ran against the slate two years ago unsuccessfully and filed a complaint with the Judicial Qualifications Commission, arguing that judges who participated in the slating process were violating the Judicial Code of Conduct. Coincidentally, two judges, one from Marion County and one from Hendricks County, referred complaints to the Attorney-Disciplinary Commission against Ogden, which resulted in charges being brought against him and a hearing officer recommending that he be suspended from the practice of law for at least one year without an automatic right of reinstatement for criticizing one of the judges in a private e-mail communication and a specious claim that he engaged in an ex parte communication with the other judge for sending an informational letter to judges and prosecutors on a legal issue, something big law firms do all the time without any consequence.

The story mentions that the Judicial Qualifications Commission wouldn't confirm whether it planned to investigate the latest allegations regarding the payment of slating fees by judicial candidates, but it hasn't done anything about complaints filed in the past so it's doubtful the Commission will act now. The ACLU of Indiana, as the report notes, has filed a lawsuit challenging the current statutory mechanism for electing superior court judges in Indiana based on the fact that each party is limited to nominating only one-half the number of candidates to fill the number of open judicial seats. That's pretty much all I can say about the matter. Any attorney who complains too loudly about the process will be punished. The real solution rests with the Indiana General Assembly, which will never change the current slating system as long as Brian Bosma is Speaker of the House.


Anonymous said...

We need to cut the legislators and the governors pay now! Bosma, Pence and Long are useless!

LamLawIndy said...

If voters choose not to vote in primaries,that's their problem & not the parties' problem. There are ways to improve slating, but a trope about how voters don't usually vote in primaries is meaningless.

Hernan Dough said...

Doesn't the AG have a role here?

Anonymous said...

What us interesting is the Star went to Tim Oakes for a comment on this story. The Star obviously didn't bother to do it's homework on Oakes he has no business giving any opions on ethics considering he killed someone when he was 18! And yet he is deemed fit to be a judge!

Paul K. Ogden said...

LamLawIndy, there is no way to improve slating. The fact is they're always going to rig the system and adopting rules that would be enforced by the very parties that rig the system in the first place is not going to fix the problem. Marion County is virtually the only place in the country that has slating. We need to do away with it.

This is a terrific commentary by Gary. He's spot on about the slating process being a joke. It kills me how many PCs get involved thinking they actually have a say on who is slated. They don't.

Anonymous said...

Gary, I thought the issue of the constitutionality of the slating process was currently before the federal court. The last I heard a pretrial conference was set for January 17 in Common Cause Indiana v Indiana Secretary of State following Judge Young’s dismissal of the state’s motion to dismiss the suit. Common Cause and the ACLU are challenging the slating system in Marion County, and the complaint seeks to block future enforcement of the process, derided by many as corrupt, the question being whether a citizen’s vote in the general election matters, since the only people on the ballot have paid a fee to be there. “The failure of Indiana law to permit registered voters in Marion County to cast a meaningful vote for all seats on the Marion Superior Court violates the First Amendment to the United States Constitution,” the complaint says.

Gary R. Welsh said...

Anon. 2:54, That recitation of the status of the federal case sounds correct. I know that the district court judge denied the state's motion for summary judgment, which is always the biggest hurdle in federal court to overcome.

Anonymous said...

Under what law do two parties get to split judge seats?

Greg Bowes said...

There is one way to express displeasure with the slating process. Vote for a candidate who was not endorsed by his party. While there are no choices available this year in the Republican Primary, three non-slated candidates are on the Democratic Party ballot: Greg Bowes, David Hennessy, and Christopher Starkey. Keep in mind that your vote becomes stronger if you "bullet vote" by not using all eight of your choices and vote only for the candidates you support.

Gary R. Welsh said...

Anon. 4:24, A law passed by the Indiana General Assembly creates the judicial election process we have in Marion County. Different counties have different laws. For example, judges in Lake and St. Joseph Counties are selected through a merit selection system.

Anonymous said...

Well if the Star is to be believed Saint Joe Hogsett will go fearlessly after corruption! If you like fiction read this in the Star note his pathetic response to his "Critics". You seem to be getting someones attention Gary!

Anonymous said...


How can any law be considered valid that divides public offices between two private companies?

The parties are just corporations created for political benefit. How can anyone argue that any corporation is entitled to half of the political offices in any county?

This is rank immorality.