Marion County slating reform gets new push

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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