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Refusal to remove biased board member ends potential administrative remedies

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After finding that the exhaustion of administrative remedies was excused for a company seeking to operate a stone quarry because a drainage board member was biased against the project, the Indiana Court of Appeals ruled the trial court acquired subject matter jurisdiction and properly denied the board member’s motion to dismiss.

Gerry Scheub was a vocal opponent to an application filed by Singleton Stone with the Lake County Plan Commission for a zone change to allow it to construct a stone quarry. Scheub was a member of the plan commission as well as chairman of the Lake County Drainage Board, from which Singleton needed to obtain a permit after approval by the Lake County Council.

Singleton asked that Scheub recuse himself from a vote on the drainage permit, but Scheub declined. Singleton then filed a complaint seeking a declaratory judgment that Scheub’s participation in or attempts to influence the board’s consideration of the permit would deprive Singleton of due process and should be enjoined. Scheub and the board filed a motion to dismiss alleging the action was not justiciable for lack of subject matter jurisdiction.

The parties entered into a settlement conference at which Scheub agreed he would recuse himself as long as the stipulation of judgment would be filed after the primary election, in which he was running. Singleton accepted, and the parties agreed Scheub would be replaced on the board by Richard McDevitt on this matter. A week after the election, Scheub’s attorney said there was “no deal” because Scheub “changed his mind.” Singleton then filed a motion to enforce the settlement agreement. The trial court denied the motion to dismiss filed by Scheub and found the parties entered into an enforceable agreement.

In Gerry Scheub, and the Lake County Drainage Board v. Van Kalker Family Limited Partnership, Lake County Trust Company as Trustee of Trust No. 5240 and Singleton Stone, LLC, 37A03-1210-PL-453, the judges found this case to be similar to Ripley County Bd. Of Zoning Appeals v. Rumpke of Indiana, Inc., 663 N.E.2d 198 (Ind. Ct. App. 1996).

“Here, as in Rumpke, it is clear that Scheub’s actions in the quarry project amounted to an actual bias against Singleton. In order to give the Drainage Board an opportunity to prevent an error as a result of bias, Singleton requested Scheub’s disqualification,” Judge Patricia Riley wrote. “Upon the Drainage Board’s refusal to disqualify Scheub, any further action by the Drainage Board became futile and of no value under the circumstances because any decision in which a biased Board Member participates will be vacated. Therefore, as the exhaustion of administrative remedies was excused, the trial court acquired subject matter jurisdiction over the cause and properly denied Appellants’ motion to dismiss.”

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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