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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. 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.

  2. 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?

  3. Low energy. Next!

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