An Indianapolis attorney and an Indianapolis Bar Association political action committee want the Indiana Commission on Judicial Qualifications to look into how Marion County judicial candidates contribute to political parties as part of the process in running to be a judge.
The two requests – one made in late December and the other in mid-January – focus on the Marion County selection system and the fees associated with that process, key issues as the county prepares for a majority of the Superior Court bench to be on the ballot this year.
The fees are an integral part of the judicial selection system that’s been in place since the mid-1970s.
Marion County is the only Indiana county that uses a unique hybrid method of trial judge selection. The method stems from complete removal of the county’s Republican judges after the Watergate scandal. The Indianapolis legal community worked for three years to craft the system now in place in order to avoid the same turnover.
The result: Republicans and Democrats get the same number of judicial candidate ballot spots. For the 2012 election, each party has 10 spots to fill the 20 available judicial seats in the May primary. The parties hold slating conventions where they endorse those who will appear on the ballot, and each party collects money from candidates to pay for election costs. If someone isn’t slated and decides not to run against the slated candidates, that person receives an 80 percent refund.
The Republicans ask for $12,000 while the Democrats ask for $13,500, according to both party chairmen. The fees are not mandatory and are strictly designed to help cover the costs, the parties contend.
“While Marion County’s slating process is bad for judicial selection, it is even more egregious when coupled with slating fees,” attorney Paul Ogden said. “As judges are desperately out trying to raise money to pay their respective slating fees, we attorneys receive a number of fundraising letters. We feel compelled to contribute, and it’s clear that most of this fundraising activity is designed to cover slating fees.”
Ogden submitted a letter Jan. 11 to the qualifications commission contending that the judicial candidate fees are required “slating fees” that the commission prohibited in a 1992 advisory opinion.
The opinion pointed to the state’s judicial canons that prohibit the parties from requiring slating fees, even though they could ask judges to voluntarily contribute.
In his letter, Ogden cites a letter he received from an attorney on behalf of a judicial candidate that says, “Funds are needed to cover the cost of mailings and general campaign expenses, to say nothing of the required and substantial recommended contribution to the candidate’s political party in order to be considered at the organization’s slating convention …”
Ogden’s letter asks the commission to find that the amounts are prohibited even if they are described as voluntary, and that any slating fees paid for the 2012 election on the Republican or Democratic side be returned.
The political parties deny that they require slating fees.
“Anyone who’d say this is a required slating fee absolutely doesn’t understand our system,” said Marion County Republican Party chair Kyle Walker. “It’s voluntary, and to say otherwise is faulty on its face.”
Marion County Democratic party chair Ed Treacy said that Democrats in the past submitted a report to the state’s highest court about the amounts collected from judicial candidates and the expenses incurred for elections, and no one raised any concern.
“To me, it’s only fair for everyone to equally share in the expenses,” he said. “If someone doesn’t want to pay, they can still run and no one can stop someone from seeking election. In America, you have to carry your own fair share. That’s what our system allows.”
The Indianapolis Bar Association’s Attorneys for an Independent Bench Political Action Committee also wants the commission to weigh in on the slating fees. Former Indiana Supreme Court Justice Theodore Boehm and retired U.S. Magistrate V. Sue Shields, in their roles as co-chairs of the committee, made the request in late December.
The PAC’s work hasn’t fully started yet because of the questions about this fundraising practice, and Boehm also wonders if the IBA should be supporting a system that might conflict with professional conduct rules.
“A fundamental question this raises is should parties be using candidates as fundraising devices?” Boehm said. “This interjects campaign contributions into judicial races, and personally I think we’re better off without it.”
Marion County judges contacted by Indiana Lawyer who are on the bench or running for re-election declined to comment. But those contacted by the newspaper who have gone through the slating process and are no longer serving as a judge say their understanding has always been that the money is a required part of being endorsed by the political party. The question of appropriateness depends on who you ask.
When U.S. Judge William Lawrence ran for Marion Circuit judge in the 1990s, he said that slating fees were required and the legal community thought of them that way. That changed after the 1992 advisory opinion, but he said candidates were still expected to contribute. He left the state bench to become a federal magistrate a decade ago.
“This issue has been smoldering for years,” Lawrence said. “These fees are cash cows for the political parties, and they’ve been what’s standing in the way of changing the judicial selection process in Marion County.”
Former Marion Superior Judge Gary Miller, who was not slated in 2008 along with two other longtime judges, always had the understanding that the slating fees were required. Often, the slating comes down to those who are politically connected, not necessarily best qualified, he said. In his years of paying a fee, Miller said it equated to about $13,000.
“I’m torn, as a party loyalist who thinks there is a legitimate reason to ask candidates to contribute to these costs,” he said. “But I think it’s a bit unfair to use judicial candidates to raise substantial amounts for other candidates, which is what happens.”
Miller hopes the system eventually changes.
“At some point, we’re going to convince the parties that judges are different and shouldn’t be on the same type of slating and used as fundraising mechanisms,” he said. “We’ll convince them that we’re different than other elected officials. But we’re not there yet.”•