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Indianapolis Bar Association forms PAC

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The Indianapolis Bar Association may be the first statewide or nationally to create a plan aimed at combating judicial campaign-contribution concerns on the heels of a landmark court ruling last year.

Though it doesn’t mandate anything, the association’s plan in the state’s largest county gives attorneys an alternative of contributing to a larger pool rather than to individual judges.

Most agree the concept is a good one generally and the IBA should be commended for addressing public-perception concerns that justice can be bought. However, many within the legal community question whether it’s actually needed in Marion County and doubt this will make any practical difference. Some even wonder whether it could present constitutional free-speech concerns at a time when more attention is being focused on judicial elections overall.
 

Charles Geyh Geyh

“To me it sounds like much ado about nothing,” said Charles Geyh, a professor at Indiana University Maurer School of Law – Bloomington and a nationally recognized expert on judicial-selection issues. “In some ways, it seems to be a solution in search of a problem.”

The issue came to a head in June 2009, when the Supreme Court of the United States ruled on Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252. The ruling examined how judges should recuse themselves when faced with litigants who’d donated to their judicial campaigns.

The case involved a coal mining president who spent $3 million to support a candidate for the West Virginia Supreme Court of Appeals who opposed a sitting justice. The candidate won the seat, and then later the mining company was a litigant before that state’s high court. The justice refused to recuse himself because of the campaign contributions, and the SCOTUS ultimately held that the state justice should have recused himself because of the amount of the contribution. In response, some states and courts have revamped their recusal rules, and legal experts opined that the case would lead to a mass of recusal motions and issues nationally.

Though it remanded the case and ordered that justice’s recusal, the SCOTUS didn’t offer any guidance on how jurists should make their decisions whether to remain on a case. And in the aftermath of that decision, state judiciaries, legislatures and bar associations began weighing what they might need to do in response.
 

Hickey-Christine-mug Hickey

The IBA Professionalism Committee began examining judicial-campaign contributions after that ruling, and in February the Caperton Task Force was born. Chaired by U.S. Bankruptcy Judge Anthony Metz in the Southern District of Indiana, the committee was comprised of IBA president Christine Hickey from Rubin & Levin, A. Scott Chinn of Baker & Daniels, James Dimos of Frost Brown Todd, Jimmie McMillian of Barnes & Thornburg, John Kautzman of Ruckleshaus Kautzman Blackwell Bemis & Hasbrook, Kevin McGoff of Bingham McHale, and Jim Voyles of Voyles Zahn Paul Hogan & Merriman.

After seven months of review, the task force created a plan for a political action committee called Attorneys for an Impartial Bench, to which the county’s practicing bar could contribute for Marion Circuit and Superior candidates. The county operates on a slating system for the primary and those individuals’ names are then placed on the November ballot. AIB funds would be distributed equally among all judicial candidates on the general election ballot and at least 30 days before that election. The contributions aren’t earmarked for any specific candidates or any political affiliations, and “minimal” administrative costs would be taken from the pooled contributions before the donations are dispersed. Click here to read the Caperton plan.

The committee took its proposal to the board of governors, which approved the plan Aug. 11. No specific report or meeting minutes were provided to the board; rather, a five-paragraph statement detailing the PAC’s organizational structure was presented, she said. Committee members offered little detail about what else was discussed during the meetings this year, but some said pretty much “everything was on the table.”

This was the best response to Caperton, Hickey said.

“We’re not a do-nothing bar,” she said. “We are attempting to fulfill the bar’s responsibility to advance the fair and impartial administration of justice, and the ongoing mission of the organized bar is to instill public trust and confidence in the judicial system. There’s no suggestion that anything wrong is being done, but the appearance is one that the public believes that justice is for sale. That’s not all right, and it cries out for our bar to do something.”

Judge Metz said the three goals of the effort are to prevent the appearance that justice is for sale, to promote public confidence in the profession, and to provide attorney members with a choice for judicial-campaign contributions.

Once a Marion Superior candidate before taking the federal bench, Judge Metz said it was clear to him that donations from attorneys was a clear problem that everyone understands.

“Perhaps lawyers who are concerned about a Caperton challenge coming up can look at this,” the said. “If someone is contributing $500 to a particular judge, does this judge want to take the chance and have this come up or maybe have to think about a recusal motion? Maybe this is a way to avoid that mess all together, and we hope we can encourage people to do this.”

McGoff said he’s heard some stories where this issue of campaign contributions has been raised, maybe by a litigant questioning whether another litigant’s attorney had made a campaign contribution that influenced a judgment. But he said that’s never developed into a major issue in a case, as far as he knows.

Though the IBA examined what other bar associations nationally had done in response to Caperton, Hickey said the group didn’t discuss the idea with the Indiana State Bar Association and also didn’t look at specific campaign contribution amounts for the Marion County judges who’d be affected by this plan.

She said three forums were conducted with judges, and that resulted in “an open and honest dialogue” that didn’t present any surprises. Hickey declined to elaborate about the specific judicial feedback the task force received and used in their decision-making, saying that she didn’t want to “speak for the judges.”

Specifically, Hickey and other committee members emphasized that this PAC option is not meant to imply anything improper is happening, and it isn’t designed to comment on the Marion County slating system in any way. They said it’s voluntary and nothing can stop attorneys from continuing to give to individual judges’ campaigns.

The American Bar Association isn’t aware of anything like this being done nationally, though some states and courts are discussing public financing of judicial elections, said Dimos, a committee member who is also very involved with the ABA.

Attorneys throughout the county say they are intrigued by the idea, and some offered their support.

“The IBA’s action is a reasonable approach to this otherwise challenging issue,” said John Maley, a partner at Barnes & Thornburg in Indianapolis and a former IBA president. “I applaud the IBA’s initiative and plan on using this option for donations.”

Maley has donated to some judicial campaigns in the past, but he’s also decided not to in situations where he had a case in front of a judge at the time. Not that it would be unethical to do so, but because it didn’t “feel right” to him. The same concerns have come up through the years from various IBA attorneys, he said.

On behalf of the state bar association, president Rod Morgan agreed it was an interesting idea but doubted that it would work on a larger scale.

“I think it works in theory and is a noble goal, but the devil will be in the details,” he said. “I’m not sure it would work in a smaller county in Indiana where everyone gets a slice of the pay or you have unopposed contests.”

Marion Superior judges mostly agreed that the idea is one that sounds good in theory, but they weren’t sure if it would have any practical effect.

While some might give a few thousand dollars to judges, most attorneys might give a few hundred dollars, according to several sitting and former judges.
 

Gary Miller Miller

Former Marion Superior Judge Gary Miller, who wasn’t slated by the Democrats in 2008 and chose not to run against the slate, said this campaign-donation issue hadn’t come up for him. For example, he’d raised between $25,000 and $30,000 and used that to pay for slating fees and routine costs such as mailings and advertising, but that fundraising activity hadn’t ever been raised as a concern in court. A lawyer had once questioned an opposing counsel’s service on the judge’s campaign committee at a pre-trial conference as a basis for requesting recusal, but that didn’t gain any traction, Miller said.

“I’m not sure if it’s needed at this time,” he said. “There is a concern about the level of politics involved in the judicial-selection system in Marion County, and the IBA has been concerned about that for some time, but this really doesn’t address that. It takes the money and fundraising out of the hands of the lawyers, but it’s a perception issue.”
 

Dreyer-DAvid-mug Dreyer

Judge David Dreyer noted that this voluntary option likely wouldn’t prevent judge’s campaign committees from soliciting individual attorneys, as they currently do. He described judicial campaigns as low-key grassroot endeavors that he supports. The judge estimated an average $30,000 to $40,000 raised mostly during an election cycle, mostly for the primary and including slating fees, copying, mailing, and posters.

“Understandably, the lawyers worry about contributing, and parties might wonder if that’s factoring into it. But in reality, it’s not a problem. No judge sits down and knows who’s contributing or not, and even thinks about that influencing their decisions,” Judge Dreyer said. “But this doesn’t mean the bar shouldn’t do something, and they should be commended for providing this alternative for interested lawyers.”
 

Gerald Zore Zore

Marion Superior Judge Gerald Zore agreed that it didn’t seem like it would work, as it avoids the prime fundraising time for the May primary, and the general election season is rarely contested.

“I think it’s well intentioned from their standpoint, but I’m not sure if it really promotes public confidence because these issues are pretty rare in Marion County,” he said. “It reminds me of the voter ID statute that provides a solution for a problem that doesn’t exist in Indiana.”

Judge Zore and others wondered if this method might encourage lawyers or judicial candidates to run against the party slates following the May primary, or influence the number of self-funded candidates vying for the bench.

Ed Treacy, Marion County Democratic Party chair, laughed at those notions, and the IBA plan itself.

“This is an exercise in futility because of some absurd case, one that’s a far stretch from someone donating $150 to a judge here in Marion County,” he said.

Terre Haute attorney Jim Bopp, an advocate for judicial elections and against campaign-finance measures, said he doesn’t understand the IBA decision. He wonders why anyone would make a contribution to a PAC like this.

“Comparing this to Caperton not only trivializes Caperton, but it’s an outrageous insult to our judges in Marion County who have integrity,” he said. “They have a knee-jerk reaction to a once in the history of the world event where a judge had to recuse himself, and this has nothing to do with the trivial contributions lawyers make to judicial candidates in most places. Why not support who you think are the most qualified candidates rather than having your money also go to those who aren’t qualified? Not all candidates are the same.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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