Chinn: A Few Words About Judicial Elections

I confess that I am a political junkie. I spend too much time watching and listening to the punditry coming from all parts of the ideological spectrum and from both major political parties. (A healthy dose of MSNBC’s “Morning Joe” is a staple of my morning routine.) And for a political junkie, what could be better than 2012 – the mother of all election years in the four-year cycle of American politics?

But if we avert our gaze from the Presidential Election for a few moments, we have some pretty darn important local elections. This is a judicial election year, and in Marion County this year, we have 20 spots on the ballot for judges of the Marion Superior Court. More than half of the local judiciary in the State’s largest and busiest county is up for election. That fact alone makes the 2012 elections a big deal.

So, if these elections are a big deal for judges, lawyers, and the community, what is your Indianapolis Bar Association’s involvement? First, the Judicial Excellence Political Action Committee (JEPAC) began its work late last year to conduct its survey of Marion County judicial candidates. In accordance with its purpose, JEPAC electronically surveyed Indianapolis Bar Association attorney members, attorneys with the Marion County Prosecutor’s Office, attorneys with the Marion County Public Defender’s Office and attorneys who have entered an appearance in the past three years before an incumbent judge seeking re-election for whom an email address was available. The instructions to attorneys surveyed were to answer the questions – regarding work ethic, efficiency, judicial ethics, impartiality, legal application, and judicial temperament – only for those judges or judicial candidates with whom the attorneys had experience in professional settings or circumstances within the last three years.

On January 20, 2012, IndyBar released the results of the JEPAC survey. Every person who supplied information to JEPAC and confirmed his or her intention to file a candidacy for the office of Marion Superior Judge was included in the survey. A total of 4,323 emails were delivered in aid of this electronic survey of which 1,150 were returned with a response (conferring a 26.6% response rate). The results, along with biographical information supplied by the judicial candidates, can be reviewed at www.indyjudges.org.

The survey results are intended to be instructive to the candidates, the major political parties at their slating conventions, the voting public at the primary election, and at the general election (in the case of third-party candidacies). But it probably won’t escape your thoughts, that for lawyers to survey judges for this purpose is not without its pitfalls, especially under Marion County’s system of judicial elections. Some question the utility of the JEPAC surveys. Some don’t like what turns out to the system’s strong if not irrebuttable presumption that the primary election will be the last required legal act for installing an equal amount of judges from each major political party. Still others don’t favor the election of judges at all.

Along with these elections come campaign finance issues. In 2009, the U.S. Supreme Court held in Caperton v. A.T. Massey Coal Co. that in some contexts contributions to a judicial campaign from those appearing in front of a judge raises due process concerns. In response, the IndyBar has created Attorneys for an Independent Bench (AIB) – a political action committee that is able to receive contributions in a way that provides a legal option for lawyers to avoid making direct contributions to judicial campaigns. And retired Indiana Supreme Court Justice Theodore Boehm and retired U.S. Magistrate Judge V. Sue Shields recently co-authored a letter to the Indiana Judicial Qualifications Commission to gain clarification regarding whether Rule 4.1 of the Indiana Code of Judicial Conduct prohibits the payment of slating fees from judicial candidates seeking a party endorsement.

I don’t think the answers to questions of reform versus maintaining the status quo – either on the structure of the judicial electoral system or campaign finance for judges – are obvious. Competing values are at stake. So, against this backdrop of uncomfortable questions, the only thing we know for sure is that there are differing and sincerely held viewpoints on every aspect of our judicial elections in Marion County. But the prospect of controversy should not stifle open and good faith discussions about those differences. And the IndyBar has been and will continue to be part of fostering some of those discussions.•