By Jeffrey A. Abrams, Benesch Friedlander Coplan & Aronoff LLP
Judge Richard Young’s ruling that the current practice of electing Marion County judges is unconstitutional has created quite the stir in Marion County. We all know that the election recently held Nov. 4 has taken place as planned. There is still an ancillary suit trying to set aside that election for the judges. While some commentators do not believe the ancillary suit will change how the judges were selected on Tuesday, Judge Young’s decision certainly will change how judges will be selected in the next election in 2018.
The IndyBar has looked at this issue for quite some time dating back to the early 1990s in an effort to establish a process where we could continue to have the same quality of judges currently on the bench while protecting the financial integrity of those attorneys who run for judge and creating an independent bench that can withstand scrutiny from the public. Historically, each candidate paid a fee to his or her party to defray the costs of the slating process. Some commentators refer to it as a “slating fee” while others were quick to report that there were substantial costs incurred by each party to follow the process that had been established many years ago. There were rumors that some candidates had to obtain a loan and provide a second mortgage on his or her home to obtain the money necessary to pay the fee. Some argued that without being slated, the candidate had a very slim chance of being elected to the bench. It is my understanding that over the past 10 years, only a couple of people have been elected who were not slated.
With the current process being knocked out by Judge Young, there are several options available to the general assembly who must establish the law for the next election. They range from a purely electoral vote with the candidates receiving the most votes being elected to serve as our judges, to a merit-based process whereby any number of groups or people could have the ultimate say on who is selected to serve as a judge in Marion County. Some states allow the governor to make this decision, while others may have a branch of the general assembly, while others have a bipartisan committee consisting of lay professionals and attorneys coming together to choose which judges should serve on the bench. Once a judge has been selected to serve, his or her retention could be governed by a vote of the general population or a review by a commission similar to the designation of their initial selection.
The IndyBar is supportive of establishing an appropriate process that ensures the continued service by outstanding judges for all of our clients and the community in general. Our goal is not to dictate the process for establishing our judges or the actual determination of the process, but to be part of the discussions with all interested parties. We want to be able to actively support whatever law is proposed to the extent it is well conceived and intended to achieve the ultimate goal of continuing strong, excellent judicial decisions from our bench. How we get there is still open for discussion and when it may be achieved is anybody’s guess. The current legislative session in January has significant hurdles for the General Assembly so it is not anticipated to be high on anybody’s radar. However, the likelihood of people getting together and discussing the issue during the summer and early fall could very well present a proposal for consideration in 2016. Stay tuned as all interested groups parlay their thoughts on this process.