Star Condemns Judicial Slating, No Endorsements

The Star's editorial board weighs in today with a condemnation of the slating process utilized by the two parties in Marion County whereby a handful of political insiders meet in a backroom and give their blessing to a slate of candidates, a process which has little to do with a person's qualifications and a lot to do with their willingness to answer to the party bosses and dig into their wallets for a $12,000 slating fee.

The system by which judges are "elected" to the Marion County Superior Court is broken.

That's because in reality political bosses, not the public, decide who will be all but assured of winning a seat on the bench.

Here's how the peculiar process works: Insiders from each major political party slate their favorites ahead of the May primary, and then the exact number of candidates -- this year 10 from each party -- needed to fill the available judgeships emerges for the general election.

In other words, every Democratic and Republican judicial candidate who makes it on the ballot wins in November, and the most certain way to make it on the ballot is to curry favor with political bosses so that you will be slated (read: anointed) for the primary.

Kind of strains the notion of an independent judiciary, doesn't it?

This strange spoils system in which the two parties essentially divide up the Marion County courts is the result of a 2006 state law that has drawn widespread criticism, including from former Indiana Chief Justice Randy Shepard and Gov. Mitch Daniels.

The Star mentions that ten candidates are nominated by each party but makes no mention of the fact that there are well-qualified candidates on the primary election ballot who were not chosen in a manner that the state's Judicial Qualifications Commission just recently re-opined violates the code of judicial conduct. On the Democratic side, those two non-slated candidates are Greg Bowes and Mark King. On the Republican side, the two non-slated candidates are Judge Carol Orbison and Paul Ogden. The Star made no endorsement of any of the 24 candidates running in the primary even though its editorial concedes the primary election outcome determines the winners of the general election.
Ogden has a blog post on that newly-issued opinion by the Judicial Qualifications Commission in response to a letter from him which suggests the slated candidates could be subject to discipline for participating in the slating process here. Because the Commission did not have a specific complaint against a judicial candidate in front of it, it took no action against any of the candidates of either party who participated in this year's mandatory slating fee process. The Indiana Law Blog has more on that newly-issued opinion here and includes this excerpt from the opinion letter:

[M]aking a voluntary contribution to a political party is consistent with the Code of Judicial Conduct, but paying an assessment or slating fee is not . . .

Assessments or slating fees overwhelmingly tip this balance by suggesting to the public that a judicial candidate had to buy favor with the political party in order to obtain his/her judicial seat. Political parties certainly are allowed to decide whom to support and most likely want to give that support to active and contributing members of the party; nonetheless, this support cannot be conditioned on payment of an assessment or slating fee without undermining the very heart of what Canon 4 attempts to protect. In these situations, it is not unreasonable to expect that members of the public will view the judge as beholden to the party. Preventing such an impression and preserving public confidence in the judiciary are items that the Commission views as compelling interests.

Further, the Commission would emphasize that the crucial inquiry regarding contributions to political parties is not how they are labeled but whether the contribution is voluntary. Calling a payment a "mandatory contribution," as opposed to a "slating fee" does not make the payment any less inconsistent with Rule 4.1(A)(4). While not an exhaustive list, 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 (assuming no further explanation for the coincidence).

As to your other requests, the Commission has no jurisdiction to require the political parties to return slating fees paid, nor does it have any specific means to request that the Supreme Court make the Commission's advisory opinions binding.

Make no mistake about it. Judicial slating fees are mandatory in both parties despite claims by both parties that they are voluntary. Pay to play is the name of the game.