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.