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Marion County slating reform gets new push

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The election of 20 Marion Superior judges is little more than two months away, but the 10 slated Democrats and 10 slated Republicans on the ballot needn’t worry too much. They’re all but guaranteed victory.

That’s in large part because each of them made identical contributions to their respective county political parties, after which they won their party’s endorsement, access to resources and backing in their party slating conventions and primary elections.

The result: The 10 slated candidates in each party won in the primary, and voters in the Nov. 6 general election select 10 candidates from each party.

Party leaders insist there are no “slating fees.” But at least one former Supreme Court justice believes that whatever the Marion County system is called, it’s broken.

“The whole perception of the judicial system is compromised,” retired Indiana Justice Ted Boehm said. He said the slating system “forces judges to become an unwilling source of funding for the political parties.”
 

Theodore Boehm Boehm

“I don’t fault the judges; they have no choice,” Boehm said. “The only way to fix it is to change the system.”

Between November 2011 and January 2012, the 10 Democratic candidates for Superior Court judge who were slated at the party’s convention in February each contributed individually or through their committees $13,100 to the Marion County Democratic Central Committee, according to a review of campaign finance records at the Election Division of the Indiana Secretary of State’s office.

The records also show each of the 10 Republican judicial candidates who were later slated at the Jan. 28 convention gave $12,000 to the Marion County Republican Central Committee individually or through their committees by Jan. 17. Seven of the 10 paid in full or in part on that date, the date by which all candidates’ final contributions were made, according to the records. Of those, four made identical contributions: $5,000 on Aug. 31, 2011, and $7,000 on Jan. 17.

Boehm believes the system is unconstitutional because it disenfranchises independent voters who don’t participate in the primary election. “The slating convention is really the only significant event in that process.”

“This is like gerrymandering,” Boehm said. “Everybody hates it except for the people in control of it.”

The current system arose in the wake of the 1970s Watergate scandal when majority Republican judges were swept from office in a Democratic tide.

Indianapolis Bar Association President Scott Chinn said its board of directors recently resolved to push anew for reforming the Marion County judicial election and selection process.

Chinn said the IndyBar wants an open discussion that would welcome a variety of opinions about what reform might look like.


chinn Chinn

“I believe it’s a critically important conversation to have, frankly, because so many people want to have it,” Chinn said. “It’s also going to create tension and heartache. We’re really trying to convene all the points of view and not be strident about any one system being better than the other.”

In a 2009 IndyBar survey, 83.4 percent of responding members said they favored nonpartisan merit selection and retention elections over the current system.

The party line

Marion County’s Democratic and Republican party chairmen agree on two things. They deny slating fees for judicial candidates exist, and they are suspicious of efforts to change the system.

The Indiana Commission on Judicial Qualifications in 1992 issued an advisory opinion on slating fees and whether they violate Canon 7 of the Code of Judicial Conduct. The guidance essentially said voluntary contributions to political parties were allowed, but not slating fees or assessments.


treacy-ed-mug Treacy

“Judges who are elected in public elections with competing candidates may contribute to political parties and organizations. No judge may pay an assessment, slating fee, or similar mandatory political payment,” the commission concluded.

“There is no official slating mechanism and there’s no slating process,” said county Democratic Chairman Edward T. Treacy. He said candidates for judge who paid $13,100 a piece to the party before the convention did so voluntarily as their share of the county party’s expense. “That money gets spent on those races.”

“It’s an absolutely unfair argument,” Republican Party Chairman Kyle Walker said of accusations that the $12,000 contributed by each GOP candidate who was slated represents a pay-to-play system. “Judges don’t buy into this system. They’re asked to make a contribution to cover the costs of the convention” and support from the party, he said.

Treacy and Walker also agree that if the system in Marion County were changed, costs of judicial elections would soar.

“One has only to look at how much is spent on any other campaign in Marion County that is countywide and high-profile,” Walker said. In the current system, “far, far less is raised and spent on judicial election … by orders of magnitude.”

“This is a heck of a lot cheaper way,” Treacy said.

“The only groups that seem to be dissatisfied with this process seems to be the bar,” Walker said. “They themselves want to have more political influence over who the judges are in Marion County.”

“I think this is a lot better system to have than to have a whole bunch of lawyers sitting there deciding who the judges are. I would rather have democracy working at its best,” said Treacy, whose wife, Rebekah Pierson-Treacy, is a Marion Superior judge running for re-election in November.

Against the slate

Candidates who run for Marion Superior judge but haven’t contributed at the $12,000 to $13,100 levels aren’t just at a disadvantage. They sometimes find their own party campaigning against them.

Democrat Greg Bowes ran for Marion Superior judge in 2012. A former Indianapolis city-county councilman and county assessor who also unsuccessfully ran for prosecutor, Bowes said he’s run as a slated and non-slated candidate in the past.

He didn’t make a big contribution to the party this cycle, and he didn’t make the slate at the party convention. He wound up 11th in primary voting among 12 candidates for 10 judgeships. He said volunteers passed out “voting guides” at the polls illustrating a ballot with votes for the 10 slated candidates. The phrase “not recommended” appeared next to his name and the name of another non-slated candidate.

“This is the effect of the slating money,” Bowes said. “Using that money against your own party’s candidates doesn’t help strengthen your own party.”

A non-slated Republican judicial candidate, Paul Ogden, asked the Judicial Qualifications Commission in a letter before last year’s slating convention to revisit its advisory opinion on contributions and slating fees for judicial candidates. The commission declined to revisit its advisory opinion, but responded with a letter that concluded:

“Some of the factors the Commission believes are important to evaluate when considering whether a payment is voluntary include the timing of the payment, particularly if it must be paid by a certain time, such as before a slating convention; whether anyone from the political party communicated to the judicial candidate that the payment is expected; and whether the amount contributed by all judicial candidates during an election cycle is the same.”

Meantime, the amount that judicial candidates give to their parties continues to rise. The parties this year received more than $250,000. Since 1998, the total amount judges who won primaries this year have contributed to their parties is at least $392,000 to the county Republican Central Committee and $395,000 to the Democratic Central Committee, according to Election Division records.

Bowes is among many who say no system for judicial selection is without problems.

“I just know it ain’t working right now,” he said.•


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  • Subway?
    Subway, as in someone who was railroaded. A nice play on words, even if unintended! Paul Ogden has "rid dem rails" many a time. Reporters with stones wanting a real story of how the Indy system runs would do well to dial him up. And try to find a parallel outside of the Hoosier state for some of his true tales of those slicked up rails. He has the experience, knows the inside, is willing to share, methinks, what he knows ... for the good of the constitutional order.
  • The voice of the prophet is written on the subway halls
    Those few honorable Indy attorneys and judges who realize just how corrupted their system has become would do very well to spend a few hours with Paul Ogden to understand how the power is used to silence a prophetic voice. He has suffered for justice in a system that is not just.
    • Reposting: IBA's Support of the Slate
      It didn't like the paragraphs I used and ran everything together. Let me try again to make it more readable. . I certainly applaud Scott Chinn, President of the Indianapolis Bar Association, for welcoming reform of the judicial selection process in Marion County. However, he deserves criticism for not putting a stop to the IBA's PAC, the Judicial Excellence Political Action Committee, which uses a survey process to protect the slated judicial candidates and deride anyone who challenges it. . JEPAC's surveys are what we in the political business call a "self-selecting" poll, a poll in which you can choose or not choose to participate. They are notriously inaccurate and subject to easy manipulation. They are especially useless when used to rate the judicial abilities of candidates who have never sat on the bench but who are challenging the slate. . The survey system is easily manipulated to target non-slated candidates for negative reviews. Attorneys at the big law firms (which get a lot of contract work from the local political parties and want to protect the status quo) simply get together to send in negative surveys on any attorney who challenges the slate. Those big firms have hundreds of attorneys. It's not difficult to manufacture a negative survey result on a candidate when there may only be afew hundred surveys returned. (In my case below, I only had 116 surveys returned.) . I knew the JEPAC survey process was rigged, so when I ran for the Republican nomination for judge in 2012, I deliberately chose not to participate in the survey. After all, other candidates had been allowed to opt out of the survey. Out of the blue, I got a call from the IBA asking for information about me for its website. I provided the info. Then they told me they were going to use the information to do a survey on me, months after the deadline. I would never have provided the info if they had told me that was the intended use. I told them I did not want to be involved in the survey. The chairman of JEPAC said the survey would be conducted anyway. . The chairman of JEPAC is active in the Republican Party, contributing money to establishment GOP candidates. I was challenging the Republican slate and refusing to pay a slating fee to the GOP county chairman because it violated the ethical rules. I knew exactly why JEPAC's chairman had reopened the survey. The intent was to organize to get surveys sent in trashing me, then use the negative result in advertising against me. That's exactly what happened. . I received an 18% approval, which I believe is far and away the lowest score anyone has ever received, a score 1/3 of the lowest Republican slated judge candidate, also a non-incumbent. Did I deserve a negative rating from 82% of the respondents? I've worked in every branch of governmrment, been an attorney for 25 years, never been disciplined, practiced in virtually every court in Marion County doing civil and criminal cases, served as a Deputy Attorney General and clerked at the Indiana Court of Appeals for 3 1/2 years. I would put my qualifications up against any non-incumbent judidical candidate on either the Republican or Democratic slate. Clearly the surveys were about the IBA's JEPAC, on behalf of a local Republican leadership, delliberately using the system to get an unqualified rating to use against me in a political campaign. . Again, I applaud IBA for doing this. But the Chinn and the IBA also needs to consider their own role, via JEPAC and its surveys, in promoting the slate and running down anyone who challenges it. The survey process needs to be ended and JEPAC disbanded.

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    1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

    2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

    3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

    4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

    5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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