Candidacy issues in Allen, Lake counties

Back to TopE-mailPrintBookmark and Share

During an afternoon of heated debate about election law, a state commission kept a controversial incumbent judge on Allen County’s ballot despite arguments he should be disqualified while it essentially pulled another judicial candidate off the Lake County ballot in a challenge involving how the political process put him into the race.

At a four-hour meeting Sept. 2 in Indianapolis, the four-member Indiana Election Commission took sweeping action that influences the Nov. 2 general election but has a larger meaning statewide for those who might consider becoming a judge. One decision translates to a determination that incumbent judges aren’t held to the same standards as attorneys who might run for the bench, while the other paved the way for a court case regarding who can be in the race to replace a longtime Lake Circuit judge.

william fine Fine

The judicial candidacy questions on the agenda involved Allen Superior Judge Kenneth Scheibenberger and Circuit judicial prospect William I. Fine.

While both decisions influence the upcoming election, the Judge Scheibenberger challenge was an issue of first impression that the state commission

hadn’t previously analyzed. The Lake Circuit judge issue presented a unique aspect of how political party rules can be used to put a judicial candidate on the general election ballot.

“Clearly, those unique challenges made this meeting stand out for the legal world,” said Dale Simmons, the Indiana Secretary of State Election Division’s co-legal counsel, who offered advice to the commission during the meeting as he has for the past decade. “We usually have candidate challenges, but these presented something new for the commission to consider.”

Unique to Allen County or statewide standard?

A group of 12 residents argued that Judge Scheibenberger should be removed from the ballot because he’s been disciplined by the Indiana Supreme Court – based on formal charges filed by the judicial qualifications commission – and that makes him ineligible for the ballot.

The Supreme Court last year suspended the longtime judge for three days without pay because of his conduct in late 2007 when he – wearing his judicial robe – went into another judge’s courtroom for a sentencing hearing and verbally accosted the family of a defendant he suspected had been connected to his son’s drug-related death a year before. The justices determined his behavior was that of a grieving parent.

Opponents who wanted the judge removed from the ballot used that incident and IC 33-33-2-10(3), which states that judicial candidates may not have had “any disciplinary sanction imposed … by the supreme court disciplinary commission of Indiana or any similar body in another state.”

Legislative history doesn’t offer any reasons for the provision that falls within Title 33, but House and Senate journals from 1983 show that the statute – originally I.C. 33-5-5.1-29.3 before it was recodified – was a new section enacted as part of Public Law 301-1983, §4. The measure was a last-minute addition during conference committee, tacked onto Senate Bill 191 that then-Sen. Lillian Parent, R-Danville, introduced to make littering a Class B infraction. Rep. Richard Worden, R-Allen County, was one of the four conferees assigned to the legislation at the time, and he’s the lawmaker now credited for putting the judicial provision into place.

No other legislative history exists showing why it was done, and there’s no written guidance in the 27 years since then that the election commission could use to analyze the statute.

Opponents argued it applies to judges and prevents them from retaining office if they’ve been disciplined, while Judge Scheibenberger and his legal team contended that it’s a term of art not applicable to incumbent judges.

Jeff Arnold, a lawyer speaking on behalf of a person wanting the judge off the ballot, said the statute used the disciplinary commission as a general term because it wasn’t capitalized and should also be read to encompass the judicial qualifications commission. He noted that if the election commission reads that law closely, it technically does nothing at all because only the Supreme Court can sanction attorneys and judges.

But the judge’s attorney, Robert Thompson, said that phrase was a term of art and that the General Assembly knew exactly what it was doing to specifically craft a statute that draws a distinction between disciplined attorneys and judges. He said the Indiana Constitution specifically outlines the powers of the judicial qualifications commission, and this statute wasn’t meant to usurp that authority.

Thompson said the legislative intent isn’t important, but rather it’s the intent of the law that can be gleaned from the words and related sections. A statute must speak for itself, he said.

“If they meant to include sitting judges, they would have included a sanction initiated by the judicial qualifications commission,” Thompson said. “You can’t construe it any way you want to. That’s not a good legal argument.”

Election commission member Anthony Long said the drafting error might mean the statute is ineffective but that “it wouldn’t be the first time,” and he doesn’t want to broaden the interpretation of a statute as it’s written. Legislators must be presumed to have known about the differences in the two disciplinary bodies, he and other members said. The commission also encouraged residents to ask their legislators to clarify the statute if they have a concern.

With that unanimous 4-0 vote and dismissal, Judge Scheibenberger stays on the ballot to run for the seat he’s held since 1992. Fort Wayne attorneys Wendy Davis and Lewis Griffin are running against him for the bench.

Ballot battle in Lake County

The commissioners weren’t as agreeable in the judicial candidacy case involving Highland attorney Fine, who was the Republican candidate for the Lake Circuit Court opening that will be created when Judge Lorenzo Arredondo leaves the bench this year.

Merrillville Town Judge George Paras won the Democratic primary in May, but no Republican was on the primary ballot so party chair Kim Krull named Fine to fill that ballot vacancy. But some questioned his candidacy based on the party chair’s ability to name a candidate herself rather than having a party caucus.

Fine’s counsel Jim Ammeen and Cordell Funk wanted the commission to deny the challenge outright because they didn’t believe the state board had jurisdiction to decide the matter.

Michael Back, attorney for Judge Paras, questioned the Republican Party rules and state statute for how Fine was chosen. Back argued that the party should have conducted a caucus to choose a judicial candidate for the general election ballot.

Fine’s attorneys ar-gued that a caucus in the Lake County matter wouldn’t have been required because the Circuit Court covers only one county and the caucus rule extends only to circuits covering more than one county.

The commission members disagreed about whether the political party chair should be able to appoint Fine, though they all agreed that their decision applied only to state or constitutional offices and not county positions. Krull has the ability to appoint those individuals, they all said.

Simmons says he was surprised the party rule was raised as an argument.

“I don’t recall a challenge based on party rules, and I’d say that’s a unique ground to have covered,” he said.

Because the election commission was deadlocked, state election standards specific to the general election deemed that Fine is off the ballot unless a court determines otherwise.

dan dumezich Dumezich

Commission chair Dan Dumezich, a Chicago attorney and former Indiana lawmaker, said he disagreed with keeping Fine off the ballot because he believes Krull had the authority to put him there.

“Now he has to go to court,” Dumezich said.

And that’s happening. Representing Fine on this issue, Indianapolis attorney David Brooks received a copy of the commission meeting transcript and filed an expedited appeal Sept. 10 in Marion Superior Court.

Whatever happens next, Simmons said it needs to materialize quickly because deadlines are approaching this month for when absentee ballots must be printed and delivered.

“That’s just around the corner, and the prospect of ballots being printed without his name on it exists,” he said. “We’re just so close to the election.”•

Update: Marion Superior Judge Michael Keele signed an order Sept. 13 putting judicial prospect William I. Fine back on the Nov. 2 ballot.


Sponsored by
Subscribe to Indiana Lawyer
  1. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  2. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  3. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  4. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  5. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well