Paul Ogden Files For Marion Superior Court, Bucks The Party's Slated Candidates

Paul Ogden (Indiana Lawyer Photo)

Fellow blogger and attorney Paul Ogden filed paperwork this morning to run in the May primary for Marion Superior Court judge. Ogden, who did not compete for slating as one of the party's ten slated judicial candidates at the Marion Co. GOP slating convention late last month, becomes the twelfth candidate to file for the Republican primary race. In addition to the ten candidates slated last month, Marion Superior Court Judge Carol Orbison filed to run in the primary after being denied re-slating by the party's precinct committeepersons. One of the Republican slated candidates, Marion Superior Court Judge Robert Altice, Jr., is also a candidate for the vacant Supreme Court spot being vacated by Chief Justice Randall Shepard. If Gov. Mitch Daniels appointed Altice to the Supreme Court, then there would be only 11 candidates vying for the 10 spots to be filled by Republican judges.

The Marion County Republican and Democratic Parties have come under increasing scrutiny regarding the slating process to which the parties subject judicial candidates. Both parties require judicial candidates to pay substantial slating fees if they wish to be considered for the party's backing in primary election. A losing candidate is refunded some but not all of any slating fees paid to the party. Republican judicial candidates are required to pay $12,500, while Democratic judicial candidates are required to pony up $13,500. It is commonly understood that any candidate who refuses to pay the slating fee will not be considered for slating at the respective parties' slating conventions. Each party nominates ten judicial candidates in the primary for twenty judicial spots, which means nobody who wins the primary election will lose the general election short of a third party candidate pulling an unprecedented upset in the November election.

Both Ogden and the Indianapolis Bar Association's political action committee have pending complaints before the Indiana Judicial Qualifications Commission arguing that the slating process violates the Indiana Code of Judicial Conduct. They cite a 1992 advisory opinion that prohibits the political parties from mandating that judicial candidates pay slating fees. The advisory opinion permits judicial candidates to make contributions to political parties to offset necessary campaign expenses so long as the contributions are voluntary. The Indiana Lawyer discusses the complaint Ogden lodged with the Commission:

“While Marion County’s slating process is bad for judicial selection, it is even more egregious when coupled with slating fees,” attorney Paul Ogden said. “As judges are desperately out trying to raise money to pay their respective slating fees, we attorneys receive a number of fundraising letters. We feel compelled to contribute, and it’s clear that most of this fundraising activity is designed to cover slating fees.”

Ogden submitted a letter Jan. 11 to the qualifications commission contending that the judicial candidate fees are required “slating fees” that the commission prohibited in a 1992 advisory opinion.

The opinion pointed to the state’s judicial canons that prohibit the parties from requiring slating fees, even though they could ask judges to voluntarily contribute.

In his letter, Ogden cites a letter he received from an attorney on behalf of a judicial candidate that says, “Funds are needed to cover the cost of mailings and general campaign expenses, to say nothing of the required and substantial recommended contribution to the candidate’s political party in order to be considered at the organization’s slating convention …”

According to the story, former Supreme Court Justice Ted Boehm and former U.S. Magistrate Sue Shields filed the complaint on behalf of the Indianapolis Bar Association's political action committee. No sitting judges in Marion County would respond to the Indiana Lawyer's request for comment on the issue. Both parties' leaders deny the slating fees are mandatory, but two former Marion County judges say otherwise.

When U.S. Judge William Lawrence ran for Marion Circuit judge in the 1990s, he said that slating fees were required and the legal community thought of them that way. That changed after the 1992 advisory opinion, but he said candidates were still expected to contribute. He left the state bench to become a federal magistrate a decade ago.

“This issue has been smoldering for years,” Lawrence said. “These fees are cash cows for the political parties, and they’ve been what’s standing in the way of changing the judicial selection process in Marion County.”

Former Marion Superior Judge Gary Miller, who was not slated in 2008 along with two other longtime judges, always had the understanding that the slating fees were required. Often, the slating comes down to those who are politically connected, not necessarily best qualified, he said. In his years of paying a fee, Miller said it equated to about $13,000.

“I’m torn, as a party loyalist who thinks there is a legitimate reason to ask candidates to contribute to these costs,” he said. “But I think it’s a bit unfair to use judicial candidates to raise substantial amounts for other candidates, which is what happens.”

Miller hopes the system eventually changes.

“At some point, we’re going to convince the parties that judges are different and shouldn’t be on the same type of slating and used as fundraising mechanisms,” he said. “We’ll convince them that we’re different than other elected officials. But we’re not there yet.”

Whenever I discuss Marion County's system for electing judges with my old friends back in Illinois, they can't believe we have a system that is actually worse than Cook County, Illinois. Actually, Cook County used to elect all of its judges en masse on a long ballot sometimes referred to as a bed sheet ballot. Not surprisingly, unless you were slated by the Cook County Democratic Party, your chances of winning were slim to none, and it was virtually impossible for a Republican candidate to win in a county-wide race so the Democratic primary was the election for all practical purposes. In the face of mounting criticism in the aftermath of Operation Greylord, an FBI sting of the county's judicial system that netted dozens of criminal convictions against judges, attorneys and court employees, the county was broken up into 15 sub-circuit districts from which judges are elected, in addition to judicial court judges who are also elected county-wide to help make elections more competitive, even if it continued to remain a very political process. At least in Cook County, judges are only guaranteed a seat if they win the general election as well as the primary election, unlike Marion County where the major party candidates secure their seat after winning the primary election at which few voters participate.

See Ogden's announcement here.