Thursday, October 09, 2014

Federal Judge Declares Marion County Judicial Election Process Unconstitutional

In a sweeping decision today, Judge Richard Young, federal judge for the Southern District of Indiana, ruled in a favor of a lawsuit brought by Common Cause against state officials challenging the constitutionality of Marion County's byzantine statute for electing judges to the Marion County Superior Court. A unique law applicable only to Marion County allows each of the political parties to nominate at a primary election only half the number of superior court judges to be elected at the general election. As a consequence, general election voters have no real choice in judicial races. Judge Young notes in his opinion that this process is unique in the nation as well.

Common Causes' lawsuit maintained that the statute in question denies Marion County voters their First Amendment right to cast a meaningful vote in the superior court judicial races. The First Amendment's reach to actions of the state which impede voters' First Amendment rights is applied by incorporation through the Fourteenth Amendment. Judge Young concluded that the state failed to advance a compelling state interest in defending Marion County's unique judicial election process, which he found severely burden the First and Fourteenth Amendment rights of Marion County voters. His conclusion were based on his findings that: voters were denied to meaningfully vote for a full slate of candidates from each respective political party; the challenged statute severely burdens voters' right to vote; and the state failed to "identify and evaluate the precise interests put forward by the State as justifications for the burden put forward by its rule." In a footnote, Judge Young cited in support of his contention that the state law allowed Marion Co. no real choices a blog post on the Indiana Law Blog commenting on new court assignments for judges to be elected at the general election before the election had even transpired.

The state argued that a full slate of judicial candidates would lead to a "free-for-all" election that would lead to "intensely partisan and expensive campaigning." Judge Young noted that the state wasn't even required to rely upon an electoral process as a means for choosing judges, noting that the state has adopted merit selection processes through a judicial nominating commission in both Lake and St. Joseph Counties for choosing judges. Judge Young observed that under the Marion County statute the judges were chosen through a very partisan primary election process, which is actually even more unseemly than he describes in his opinion given the fact that judicial candidates are required to pay very large slating fees to their respective political parties for the right to be endorsed by the party in the primary election. Judge Young countered the state's argument, noting that the case could be made that by imposing the judicial cap on judges chosen in the primary election the process was made even more partisan.

Judge Young's opinion permanently enjoins the state from enforcing the Marion County judicial election statute (I.C. 33-33-49-13(b)); however, he stayed his order for 30 days to provide the state an opportunity to appeal his decision. If a notice of appeal is filed by the state, then his order will be stayed until a final determination is made by the 7th Circuit Court of Appeals. You can access Judge Young's opinion at the Indiana Law Blog by clicking here.

UPDATE: The Indianapolis Bar Association released the following statement in response to Judge Young's decision today:
The Indianapolis Bar Association (“IndyBar”) is reviewing Judge Young’s decision holding unconstitutional Marion County’s current system for selecting judges.  For more than twenty years, the IndyBar has taken an active interest in the best methods of selecting judges in Marion County.  Through its Attorneys for an Independent Bench (AIB) Committee, the IndyBar intends to offer its assistance in crafting a remedy to address the Judge’s decision.  Marion County has been well served by its excellent judges over the years, and inclusive engagement of all interested parties in creating a new judicial selection method will ensure that continues.


Anonymous said...

Well done, Common Cause.

A loud round of applause for you.

I am genuinely stunned. I didn't think the Southern District had it in it to issue a ruling toppling the immoral status quo and local mafia system.

Good news for Democrats is that these judgeships will be county-wide offices, and the Dems stand to clean up from now in Marion County races. No wonder the AG opposed it.

No way this ruling gets overturned. Is Indiana moving into the 21st Century?

Merit selection sucks. That's patronage of the worst order.

Buh-bye Republican judges. Welcome back to private practice.

Gary R. Welsh said...

The legislature and governor's office are still controlled by Republicans the last I checked. They're not going to replace this system with one that elects all Democratic judges. Merit selection is in Marion County's near future in all likelihood.

Anonymous said...

If they play that, Gary, look for the Dems to play hardball.

This is a massive win for the Democrats. I would be surprised to see them allow it to be taken by Republicans. If the Marion County contingent opposes it at the Statehouse, I don't see the rest of the State meddling in Marion County business.

Perhaps the Dems could hint at bringing Curry into play to start poking around the Statehouse, as he has the power to investigate and indict state officeholders.

With the Republican judges gone and Hogsett being the next Mayor, I don't see what the Republicans retain in Marion County?

Paul K. Ogden said...

Anon, the Democrats were very much in support of the current law. It wasn't just the Republicans. This is a win for voters, but it's not a win for the Democratic or GOP local political parties.

Gary is right, the Republicans in the Statehouse are not going to agree to change the system so that only Democrats are elected judges in Marion County. There is no law that requires that judges be elected countywide, which would mean they'd all be Democrats. They could set them up in districts, or do merit selection, or numerous other methods. The

local landlord said...

I’m tired of all the shenanigans. Just because we get rid of one corrupt slating process for judges doesn’t mean we want another crappy selection process. Is there anyone out there in a position of authority that actually views this as an opportunity to do this right; to fix things for the better, to benefit the residents the most, and without regard for whether the political parties gain advantage? The people are genuinely unhappy with the state of the judicial system here in Marion county. The opportunity has presented itself to begin to fix this problem. Perhaps we ought to ask our best and brightest in our law schools and university government programs and some outside experts to submit some recommendations for the very best way this county could select its judges from now on. What I don’t want to hear is that Bob Grand at Barnes and Thornburg or the Lilly CEO or some big Democratic donor had any sway at all in picking the process or the next candidates. Its time to end the corruption in Indianapolis, and we should take every opportunity to make government better. This particular opportunity just happens to have unexpectedly presented itself. Lets not muck it up with cronyism, patronage gerrymandering type politics. Really. I have very little faith that political insiders can do this without making it worse, and its hard to imagine worse. Everybody knows we have a problem. Are there no honest, public servants willing to put an excellent system in place for us to choose our own judges?

Anonymous said...


The Dems may have agreed to it back in the 60's and 70's, when Marion County was a toss-up, but those days are gone. Indianapolis is another Northern urban city, and those are all strong Democrat.

Remember, if they don't change the law, only Democrats will be elected judges in Marion County.

Right now (or in 30 days), the election process for Judge becomes exactly the same as for Clerk. The legislature has to do something affirmative to make the procedure for judge different than Clerk, and it will be a difficult process to explain why Judge is now somehow deserving of different election laws than Clerk, when Marion County Judges have been elected, all along.

There's simply no way to hold certain offices in reserve for certain parties, and if they try it, there's another lawsuit on the way.

Marion County is majority Democrat. That majority wins - all county races. That's the reward for building a majority.

In Political Science, we describe this is as an intrinsic characteristic of a winner-take-all system.

And they can't do "judicial districts" in Marion County. Again, another lawsuit. Are we to have venue motions filed over where you reside in the County?

"Your Honor, Courtroom 6 clearly does not have jurisdiction here, as Courtroom 7 has jurisdiction for all matters from 16th St. to 38th Street. We move to dismiss, with prejudice."

We're not going to set up micro-counties just to get some Republicans elected. Jurisdiction attaches by county. All the County votes on all the Judges, as all the people in the County can be called before any Judge in the County.

"You're not my Judge. I live in a different district. You don't have jurisdiction over me."

Let it go. The Dems won. Don't like it? Move to Hamilton County.

Anonymous said...


No, thanks. Keep your mafia hands off our election. You're not needed; you're not necessary, and the public doesn't want your mafioso gatekeeping.

Judge is just another elected office, and the election will run just like any other office.

Let me explain the new ballot.

For Courtoom 1 (Select only one)

Matt Wallace (D) [ ]
James Murphy (R) [ ]
Ellen Johnson (L) [ ]
Susan Watson (G) [ ]

For Courtroom 2 (Select only one)

Name (D) [ ]
Name (R) [ ]
Name (L) [ ]
Name (G) [ ]

And so forth.

You're irrelevant, IndyBar. Go away.

Anonymous said...

On IBJ, Local Landlord made the same comment I was thinking. Given that every judge on the bench was elected through an unconstitutional process, every judge seat should be put up for special election under a constitutional process, since nobody before the court has faith that the judge was elected through a fair and honest process. Right now, every judge is just a tool of the party that nominated him.

Glenn Hatmaker said...

Hey Gary, wondering how this will be addressed - whose decision will it be as to how a new system would work? Bill in the Legislature? Don't see anything on the bill list this year.