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In-box: IBA's move is a step in the right direction

September 15, 2010
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Letters to the Editor

To the editor:

Several articles have been written on the recently announced Indianapolis Bar Association PAC relating to judicial campaign contributions. The article appearing in this paper compelled me to write this letter to the editor.

Our legal community has for years worked under a system that requires judicial candidates to fund-raise from lawyers who appear before them. This puts attorneys and judges alike in the untenable position of being linked both by money and justice. With the U.S. Supreme Court case of Caperton v. Massey came the recognition that this system can, and often does, create an appearance of impropriety that simply is not tolerable. The court gave no bright-line test to determine when direct campaign contributions are beyond scrutiny; no threshold amount was offered for guidance, and there was no exclusion for “judges in Marion County who have integrity.” Is the amount of the contribution the guiding factor, or is it the personal financial support that is key? Does a client care whether $150 or $1,500 was given or is the issue really the direct financial link between attorney and judge? In his dissent, Chief Justice John Roberts recognized that the opinion provided no guidance on these issues and opined that the case would “inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

To the astute, informed reader, the opinion left unanswered the question of when direct contributions, in any amount, are ever acceptable between lawyer and judge. Indeed, Caperton raised the profile of an issue deserving of legitimate concern and did nothing to quell the public perception that perhaps justice can be bought. Just this past year, attorneys were scrutinized by the media for hosting fundraisers and contributing to public officials in the legal field. The public was led to believe that these contributions, no matter how small, were evidence of untoward motivations and ill-gotten gains. In fact, this very paper used speculation and innuendo to imply that attorneys were buying justice for their clients. The Indiana Lawyer article “Justice for Sale?” was similarly off the mark.

The real story here is that lawyers are concerned about misconceptions surrounding the legal system and are working to do something about it. As with every initiative undertaken, the bar does not respond with a “knee-jerk” reaction. Instead, the issues brought to light by Caperton over a year ago were carefully studied and all options were considered. The alternative offered by the bar to avoid direct contributions to judicial campaigns neither presents constitutional free speech concerns as suggested by “some people” in the article, nor does it solve all issues relating to the election of trial judges in Marion County. The proper, honest role that money plays in judicial elections is just one of those issues. The IBA through its board has, creatively and courageously, attempted to undertake positive reform in this regard.

All too often, tough issues get buried for fear of facing them; problems persist rather than solutions being implemented because answers are not easy or risk-free. As the PAC is put to use, it will be refined as with everything the bar does. We don’t take that task lightly. That the PAC has been criticized by some as not enough does not detract from the fact that it is, first and foremost, a step in the right direction.•

Christine Hayes Hickey, President

Indianapolis Bar Association

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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