WHY THE PRESIDING JUDGE SHOULD NOT BE PRESIDING OVER THIS MATTER – AN UPDATE ON THE 2016 COUNTY COUNCIL AT-LARGE ELECTION CONTESTATION MATTER: A hearing is going to be held today (Friday, January 13, 2017) at 10 am in the 2016 County Council At-Large Election Contestation matter. As many of you recall, this past November---as early voting was underway---Allen County Council incumbent Roy Buskirk passed away. Due to the closeness of Roy’s passing to the November General Election, the Allen County Election Board was under no obligation to remove Roy’s name from the ballot. Logistically, they simply didn’t have enough time. Statutorily, they didn’t need to remove his name. Despite his passing and despite his passing being fairly well publicized, Roy won re-election.
And that’s when the conflict started. Democrats believe that the 4th place finisher Palermo Galindo should be considered the next highest vote getter and as such he should be named the 3rd County Council At-Large victor and be put on County Council as such. In contrast, the Republicans believe that the voters chose Roy knowing that he was dead to send a message that they wanted another Republican like Roy in that position. As such, the GOP feels they have a duty to caucus in a replacement for Roy. Republican Justin Busch had won the caucus to serve out the remainder of Roy’s term of January 1, 2013 through December 31, 2016. Busch also won the caucus to continue to serve in Roy’s place during the new term of January 1, 2017 through December 31, 2020.
In addition to these contrasting views emerges a third opinion that the Allen County Election Board had a duty to let early voters who had already cast their ballots the options of recasting their ballots, that the ACEB failed to meet this statutory obligation (and an obligation that is clearly marked in the 2016 Indiana Election Administrator’s Manual, and as a result of the ACEB’s failure---the ACEB has inadvertently has influenced the outcome of the elections. As such, this failure requires that a special election be held. Of course, the establishment on both sides of the aisle agree that a special election is the one thing neither side wants to have happen.
As if the matter weren’t complicated enough, a request was issued that all Allen County Circuit and Superior Court Judges recuse themselves from this particular matter and either bring in a Judge from outside of Allen County or send the case to a jurisdiction outside of Allen County. The reasoning behind this request is that the Judges get paid an annual salary from the State of Indiana in excess of $100,000 annual. In addition to that annual salary, the local Allen County Council approves an additional optional annual stipend of $4,000 to $5,000. With all local Judges receiving this optional annual stipend, having one of the oversee the matter presents a clear conflict of interest. The perception is that the local judiciary could pick and choose who wins and who loses this contestation case based upon who the judiciary feels would be most friendly and understanding to the judiciary. Essentially, the Judges could be tempted to choose a candidate simply because that candidate is more likely than his opponents to continue to secure the annual optional stipend to the Judges and Magistrates.
In response to that initial request for recusal, Judge Thomas Felts, of the Allen Circuit Court, acquiesced and handed the matter off to his colleagues in the Allen Superior Court. Before any of them took the matter up, they were offered a joint stipulation by all parties waiving the conflict referenced above. While I’m not sure that the Indiana Judicial Canons allows such a stipulation to “solve” the pesky problem of conflict of interest, that is exactly the course of action being taken.
Enter Judge Craig Bobay, the newest member of the Allen County Judiciary.
Judge Bobay served as a Magistrate for the Allen County Courts from 2003 to 2013. [1] On June 24, 2013, then-Governor Mike Pence appointed Magistrate Bobay to the bench to fill a vacancy in the Allen Superior Court. [2] To retain that position, Judge Bobay had to campaign for office.
And that campaign has created an additional conflict of interest for Judge Bobay and that conflict of interest has not been waived! As such, Judge Craig Bobay should not be overseeing the 2016 County Council Election Contestation matter.
You see, by all rights, this contestation matter should and does involve members of the Allen County Election Board. As stated above, the ACEB failed to perform a duty. Specifically, the ACEB neglected to follow procedures outlined in the 2016 Indiana Election Administration Manual, in letting people know that those who voted early could recast their ballots:https://www.in.gov/…/2016_Election_Administrators_Manual.Co…
Note that page 51 of the 2016 Indiana Election Administrators Manual states: “VOTERS MAY RECAST AN ABSENTEE BALLOT UNDER CERTAIN CIRCUMSTANCES SUCH AS a ballot misprint or THE DEATH OF A CANDIDATE, but cannot ‘beat their absentee ballot’ to the polling place .” (Emphasis added)(IC 3-11-10-1.5; IC 3-11-10-32) (ABS-5 form) The ABS-5 is the official form to be used: https://forms.in.gov/download.aspx?id=9942This means there was no form to create. All the ACEB had to do was download, print, copy and distribute to its 5 early voting locations on Saturday, November 5th and Monday, November 7th, 2016.
However, despite this clear failure, as a matter of law, the ACEB is always…ALWAYS…. a party to election contestation matters. This includes the current Clerk of Court Liz Borgmann, who is a member of the Allen County Election Board. [3][4]
Liz (or Lisa) Borgmann is married to Attorney Daniel Borgmann. According to Judge Bobay’s 2013 Annual Report, which serves as his preliminary campaign finance report, his honor’s campaign committee received $250 from Daniel Borgmann on December 20, 2013. [5] That donation was used to get Craig Bobay elected. Although already serving in that particular Superior Court position, Bobay secured that spot by way of political appointment from then-Governor Mike Pence and not by election. To retain the Superior Court spot, Judge Bobay had to campaign for office. Interestingly, he didn’t have to campaign hard as he had no opponents running against him. [2][6] This means that Borgmann’s donation was relatively insignificant and the funds should have been returned to Daniel Borgmann to eliminate any potential future conflict of interest given that Daniel Borgmann is a local attorney and Liz Borgmann, as Clerk of Courts, is in charge of the Courts and election matters. But those funds weren’t returned.
And now, at the center of the 2016 Allen County Council At-Large Election Contestation matter is the members of the Allen County Election Board, including Clerk of Court Liz Borgmann.
On page 5 of the Indiana Judicial Codes of Conduct, Rule 1.2, Promoting Confidence in the Judiciary, clearly states: “…A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY...” (Emphasis added) [7]
Please understand that a Judge not only has a duty to actually be impartial, but he (or she) has the duty to avoiding the perception that they aren’t impartial. When you have a Judge who campaigned against no one, raised the maximum statutory amounts of donations permitted to each Allen County Superior Court Judge, took money from the husband of the current Clerk of Courts, failed to return that money, and now finds himself presiding over a case where the wife of a campaign donor is at the center of a case and was derelict in her official duties, which contributed to the Election Contestation---how can any Judge be perceived as anything less than biased in a matter like this?
Worse, no matter which way the Judge rules in this matter—he has the potential to look biased. If he rules in favor of the Democrats, he appears to be ignoring the failed duty of the ACEB (which includes the wife of a campaign contributor). If he rules in favor of the Republicans, he appears to be ignoring the failed duty of the ACEB (which includes the wife of a campaign contributor). Even if he rules in favor of a special election and acknowledges the failures of the ACEB, he could be perceived as ruling against the ACEB so as to maintain the appearance of impartiality.
Ironically, before 2015, the local Judges could fall back on the claim of ignorance by saying they weren’t aware of X, Y or Z. In this case, Judge Bobay could attempt to say that he wasn’t aware of any impropriety or dereliction of duty imposed upon the public by the Allen County Election Board.
However, that doesn’t really hold much value in 2017. First, local media, local bloggers, and myself have brought the issue to light. [8][9][10][11] Second, Allen County Circuit Court Judge Felts created quite the quagmire for all future election contestations. In 2015, in the Fort Wayne City Council At-Large Election Contestation, the Court ACTED ON BEHALF of the Allen County Election Board when the Court made the ACEB party to mediation for the recoupment of court costs and attorney fees that the ACEB never filed a counter-claim for. This means that the local Court system has in essence acted as an Attorney on behalf of the ACEB even when the ACEB had their own attorney. This behavior on Felts part has created another conflict of interest as there now exists a public perception that the Court will represent the interests of the ACEB even when the ACEB itself doesn’t advocate for said interests. (shaking my head as you can’t make this stuff up)
All parties to the 2016 Allen County Council At-Large Contestation may have waived the conflict of interest as it pertains to the annual optional $4,000 to $5,000 stipend that is controlled by County Council to the benefit of the Allen County judges and magistrates, but the other conflicts have not been waived. Hence, Judge Bobay should not be presiding over this contestation matter. Nor should ANY of the other Allen County judges.
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SOURCES:
[1] http://www.allensuperiorcourt.us/…/1302-honorable-craig-j-b…
[2] https://ballotpedia.org/Craig_J._Bobay
[3] http://danielborgmann.com/
[4] http://www.in.gov/judiciary/3365.htm
[5] http://www.allencounty.us/index.php…
[6] http://web.archive.org/…/2014_General_Election_Candidate_Ab…
[7] http://www.in.gov/judicia…/rules/jud_conduct/jud_conduct.pdf
[8] http://news-sentinel.com/…/Democrats-say-Galindo--not-Buski…
[9] https://x-wire2012.blogspot.com/…/1-2-posts-2016-general-el…
[10] https://www.facebook.com/GinaMBurgess/posts/10210850069872625
[11] https://www.facebook.com/GinaMBurgess/posts/10210916400370846
[12] https://www.facebook.com/GinaMBurgess/posts/10210957421636352
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Kevin Harris The corruption is systemic within this bought and paid for little town. From the very top to the bottom the corruption in this town is through and through.
Stephanie Kiger O'Rourke Polk I thought the republicans would just replace Buskirk since he passed away. I voted for him and want a republican in his place. I know it sounds like I am whining but I am not. It just seems like it should be a simple fix and a court shouldn't be needed. I agree that it needs to be held by a judge outside of Allen County. It needs to be heard by someone who has no special interest in our county. Last but not least, Judge Bobay is who married me. Lol