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Questioning judicial campaign contributions

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As the lawyers throughout the country confront the issue of judicial campaigns and fundraising, many in Indiana’s legal community say the state already goes above and beyond in addressing some of the concerns.
 

witte Witte

The American Bar Association in early August voted to adopt guidelines urging states to enact new procedural rules on judicial disqualification, a response to what the national bar sees as an increasing influence of money in judicial politics.

One of the key voices involved in crafting the new guidelines, former Dearborn Superior judge and now Indiana Supreme Court Disciplinary Commission Executive Secretary G. Michael Witte, says that Indiana is ahead of the curve comparatively because it allows lawyers and litigants to get a new judge without giving any specific reason.


Theodore Boehm Boehm

But despite Indiana’s approach as compared to other states, former Indiana Supreme Court Justice Ted Boehm says this conversation is important because it brings to the surface a deeper issue about which many in Indiana disagree: allowing money into the judicial election process through the way judges are selected.

“The problem is the money itself, and it’s unfortunate that it’s a part of our process because that can create the appearance of impropriety,” said Boehm. “Money is a byproduct of a flawed selection process, as I see it, and I think it’s good that the ABA has put some attention on the issue of lawyers funding judges whom they present cases before.”

National urging

The ABA action has been years in the making.

In response to rulings from the Supreme Court of the United States in the past decade that have had the cumulative effect of increasing the role of money in judicial elections – Republican Party v. Minnesota in 2002, Caperton v. Massey in 2009, and Citizens United v. FEC in 2010 – the ABA Standing Committee on Judicial Independence set out to tackle that issue through its study of disqualification recommendations.

A cornerstone of the new guideline is a suggestion that states institute a prompt appeals process for judicial recusal motions in order to help prevent a judge from acting as the ultimate arbiter of his or her own disqualification. The guidelines also suggest that states enact disclosure requirements for spending on judicial races by lawyers and litigants in order to address concerns about who’s supporting those individuals vying for the bench.

“What eventually came down was a compromise between everyone involved, but Indiana already has most of that in place,” Witte said. He has spent the past year chairing the ABA’s Judicial Division that has supported these guidelines.

For example, Witte said that Indiana uses Trial Rule 76(b) to allow for an automatic change of judge in civil cases. If someone has a concern about a lawyer appearing before a judge he or she has contributed to, the parties can request a different jurist without having to spell out the reasons for the request. A third of the states do what Indiana does in regard to these types of pre-peremptory challenges, according to the ABA report on the guidelines.

Through state statute and not the Judicial Conduct Code, Indiana’s elected judges also must report their campaign donations, Witte said, another aspect of the ABA suggestions. What Indiana doesn’t specifically have is “prompt” review by another judge or tribunal, though that can be an appealable issue addressed by a higher court, he explained.

“We do have review, but one can argue whether that’s considered ‘prompt’ or not,” Witte said. “That is a national discussion about whether a disqualification issue should be a disciplinary matter or something that is kept in the realm of appealability like we have in Indiana. (The judicial division) was staunch in our position that it not be a disciplinary issue because there are so many frivolous motions for change of judge, usually where someone is just upset they’ve lost.”

An example in Marion County

But the general issues and concerns that prompted the ABA action do exist in Indiana, and now one Marion Superior judge is in the hot seat because of a controversial fundraising flyer that went out to members of the Indiana legal community and created what some described as the appearance of impropriety.

Marion County uses political party slating to choose judicial candidates for ballot placement, and slating conventions scheduled for early 2012 will decide which individuals the Republicans and Democrats will have on the May ballot. Twenty slots are open with two Superior judges retiring, so each party can choose 10 judicial candidates to slate.

One of those up for re-election is Judge Becky Pierson-Treacy, who is at the center of the recent controversy. A fundraising flyer promoting an event on her behalf contained different suggested levels of contributions – $150 to be designated as a “sustained” contributor, $250 to be an “affirmed” contributor, $500 to be a “so ordered” contributor, and $1,000 to be designated a “favorable ruling” contributor.

While those responsible for the solicitation say it was meant as a play on words, some took issue with the language and raised concerns.


pierson-treacy-becky-mug.jpg Pierson-Treacy

Judge Pierson-Treacy didn’t respond to inquiries from Indiana Lawyer. Her husband, Ed Treacy, who heads her judicial re-election committee and serves as chair of the Marion County Democratic Party, has responded publicly and said the flyer was in bad taste. Co-chairs of the judge’s campaign committee, including Greg Hahn of Bose McKinney & Evans, Lacy Johnson of Ice Miller, and Linda Pence of Pence Hensel, also said the flyer wasn’t meant to be taken seriously and that nothing malicious was intended. The event was canceled after the backlash, organizers said.

“I’m somewhat surprised about the response, because this was meant as a joke and we didn’t think it would imply anything out of line,” Hahn said. “Admittedly, in looking back, maybe it was not the greatest thing. But again, it was so obvious it was a joke. I say no harm, no foul ... and I guess we can’t joke about this kind of thing anymore.”

The Indianapolis Bar Association recently created a political action committee called Attorneys for an Independent Bench to provide a voluntary alternative for attorneys to use to support local judicial campaigns without any appearance of impropriety that might come from donating directly to an individual judge.

“The bar doesn’t play a role in monitoring fundraising, but the AIB is designed for lawyers to give in a blind fashion,” IBA President Michael Hebenstreit said. “If all contributions were blind, it would eliminate the perception that you’d get something by contributing to a judge. I’m not sure lawyers will stop contributing when a friend invites them to a fundraiser, but if this became the replacement for the current system, I think it would eliminate that perception the general public might have. I’m not naïve enough to think it doesn’t happen, but I’ve never seen it in my 33 years of practice.”

But Boehm, who chairs the PAC and was an appointed merit-selected justice on the Indiana Supreme Court for 14 years, advocates a change in judicial selection is needed.

“The PAC is a good idea to allow people to support judges’ campaigns that can be expensive, but there shouldn’t be any judicial campaign expense in the first place, in my view,” he said. “Let’s have a better selection system to solve that problem.”•

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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.

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  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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