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Candidacy issues in Allen, Lake counties

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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.
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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