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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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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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JEERS AND CHEERS TO JUDGE BOBAY: As I discussed earlier today, Judge Bobay really should not be overseeing the County Council At-Large Election Contestation matter as he has numerous conflicts of interest in the matter. [1] For continuing to oversee the matter instead of transferring it to a judicial official outside of Allen County, he gets a “jeer.” However, the fact that he is willing to pursue a special election earns him a “cheer.” In particular, I tremendously appreciate the fact that he is taking the will of the voters under consideration as that is an element that has been woefully absent from the discussion between the Republicans and the Democrats. As Judge Bobay correctly stated, a special election is “… the only way the will of the people will be known….” [2]
But that “cheer” gets tempered by Judge Bobay’s desire to have the parties to the matter to reconvene Wednesday to offer arguments for and against the idea of a special election. [3] For that, his Honor earns another “jeer.” It doesn’t matter what the Democrats want. It doesn’t matter what the Republicans want. It doesn’t matter what the arguments are FOR or AGAINST a special election. It only matters that the election was not handled properly, that the will of the people cannot be determined from how this particular election was handled, that a ruling for a Democrat or for a Republican disenfranchises voters, and that the only real solution (and the only statutory solution) is a SPECIAL ELECTION.
Democrats are going to line up and tell the Judge why there shouldn’t be a special election. Republicans are going to line up and tell the Judge why there shouldn’t be a special election. Members of the ACEB are going to line up and tell the Judge why there shouldn’t be a special election. It’s highly unlikely that any party to this Election Contestation is going to advocate for a special election. It’s the one thing they all agreed on at the very beginning---otherwise, a special election would already be in the works!!
Oh, but I can’t wait to hear some of the lame arguments that these contestation participants are going to offer. Some premises will likely include issues about how much a special election is going to cost the taxpayers. And it will, which is why when this matter concludes every single member of the election board should be replaced as punishment, including the Clerk of Court---who is likely going to be taking over the vacancy created by Tara Klutz anyways. Another anti-special election argument will be about the time needed for the process and that in the interim the people of Allen County will “be without representation.” And no, they won’t – County residents will still have their district Council members and the other two Council At-Large members. The people are just fine….but thank you (to whomever will be bringing forth that argument) for laying the groundwork as to why County Government Consolidation is a bad idea. Had the 2014 referendum actually gained traction, then some people would indeed be without representation. Another anti-special election argument will likely include how voter turn-out in an off election year can’t be guaranteed. And of course it can’t, but then again---it can’t be guaranteed during any election year. Some elections just aren’t very inspiring; other times, things like bad weather come into play. Folks, for every “reason” not to have a special election, there’s an even better reason to have it. All Judge Bobay did was buy the establishment some time on how to wheel and deal and manipulate their chosen outcome.
Judge Bobay also earns a “jeer” for buying into and promoting the ideation that somehow the special election statute in this case is vague. Folks, it’s really not. Unless by vague you mean covering the collective arses of an election board whose members manipulate the outcomes of local elections, then ok….”vague” it is. (wink, wink)
The simple reality here is that the ACEB messed up. Personally, I don’t think it was intentional. THIS time. But intentional or not, the ACEB has a guide to walk them through each and every election situation. [4] The guide is available to the general public. [4] It’s written in pretty easy to understand language, not “legalese.” The only way it could be more simplified is if it had pictures with step-by-step instructions of how to hold fair, free, non-manipulated elections. [4] (Or maybe it needs to be transformed into an adult coloring book??) Even with the manual, it’s not like the local county election board is all alone in a sea of elections. The Indiana Election Commission has an Election Administrator’s portal to all sorts of resources. [5] And if all else fails, the ACEB can always put in a call or send an email to the Indiana Election Commission for advice. [6] The point here is that there is an absolute wealth of information and advisors that our local election board could have reached out to if they had so chosen. But they didn’t. They didn’t even read the manual. [4] Disturbingly, this is the first time that the ACEB has mucked up elections.
Remember the 2011 Schrader matter where the Democrats tried to make the case after Schrader won the Primary election that he wasn’t eligible to be on the ballot. I have an email from the Indiana Election Commission saying that the ACEB should not have removed Schrader from the ballot. Yep, that’s right folks. But locally, with the help of Judge Felts and the ACEB, that is exactly what Democrats accomplished. Funny thing, however, when I bring a similar matter up in 2015 then all of a sudden what the Democrats did in 2011 can no longer be done. Hhhmmm? Imagine that.
;-)
As harsh as I may be on Judge Bobay, in fairness—I do realize he drew the short straw on this matter. (But with all due respect, he didn’t have to accept and should not have accepted this matter.)
Where election matters are concerned, Judge Felts has flatly screwed up the Election Contestation process. And folks, I mean REALLY SCREWED it up! Poor Palermo Galindo had to follow my example from 2015 and send out Summons to each party involved---and in all sincerity, he shouldn’t have had to. To some lawyers out there, that may seem reasonable. Except the appropriate statute requires the COURT to do that, not the litigants, in election contestation matters.
Jack Morris set the unholy precedent in 2011 with Schrader---and ironically, I can’t even fault Morris a whole lot there. He was brought into the matter last minute by a pompous windbag masquerading as a former Democratic Party Chair who tried to create the residency issue to get Schrader off the 2011 ballot so that this guy’s tenant---HIS TENANT (as in one person paying money to another person to reside at a specific address)---could be placed on the ballot. (Nothing like a not-so-hidden personal agenda with a side of financial benefit?!?!) Despite Schrader having a signed and notarized affidavit from a federal postal worker affirming to Schrader’s Fort Wayne residency for 7 years; despite Schrader collecting housing assistance, medical assistance, food stamp assistance, etc. through local agencies; and despite having all sorts of trappings of residency from library cards to bus passes to you name it --- Schrader was removed from the ballot for not being a resident?? (raised eyebrow) And the ACEB did so illegally because they did so without a Court Order.
That’s right – the one thing Judge Felts did correctly was not issue a bogus Court Order. Felts was clearly smart enough to know that would have come back, bit him on the arse, and bounced him off the bench. But he (remember---a judge is an attorney first and maintains that license even as a judge), Morris, Hardin, Shine, Pape, Klutz and the other attorneys involved in these matters are forgetting things like truthfulness in statements to others (Rule 4.1), holding themselves and others in the profession to a higher standard (Rule 8.4), and the duty to report the misconduct of other attorneys (Rule 8.3), pursuant to the Indiana Code of Professional Conduct. It’s also plainly obvious that some of these attorneys have forgotten that fraud in the Code of Professional Conduct is lower for attorneys: “…When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, IT IS NOT NECESSARY THAT ANYONE HAS SUFFERED DAMAGES OR RELIED ON THE MISREPRESENTATION or failure to inform….” (emphasis added) [7]
This failure to remember the duties spelled out in the Indiana Code of Professional Conduct is plainly evidenced later in 2011, in a second action (after dismissing Morris’ election contestation matter), the Court dismissed Schrader’s and mine Petition to Review the Findings of the Election Board and Felts did so on a technicality. That technicality---(drumroll please)---that there was no summons for what was essentially an administrative appeal. (Folks--Administrative appeals do not require a summons.) The more ridiculous thing here---and the legal community will appreciate this more than the non-legal community----is that (1) Schrader did try to submit a Summons that was actually drafted by a local, licensed attorney but the Clerk of Court’s office rejected it, saying that it wasn’t needed because this was an Administrative Appeal. (Are you getting this? The deputy clerk didn’t think it was necessary. I was there when Schrader tried to submit it. I was there when the deputy clerk returned it to him. And I was the one that asked for Clerk of Court Liz Borgmann to come out of her office, do her job, and confirm whether that was correct or not. The deputy clerk asked but the Clerk of Court refused to engage.) And (2) the point of a Summons is to let the other side know that there is a lawsuit against them---with all the media coverage on the matter, including a quote from then-ACEB attorney Tom Hardin (now an ACEB board member)—acknowledging the existence of the lawsuit…and that was after Hardin was the one who told Schrader how long he had to appeal the matter. So the required “summons” had already essentially been given by Hardin to Schrader verbally and as such Schrader didn’t need to tell Hardin and the ACEB when he would be initiating his lawsuit against them. They had told him what the time frame was. But the Court refused to hear a Summons by Publication argument or an argument for a defective summons or an argument that a summons wasn’t needed as a matter of Administrative appeal procedure and plain ol’ common sense.
There are so many more examples to draw from here where the ACEB with the help of Judge Felts has just totally manipulated the election process --- in 2007 with Matt Kelty; in 2010 with Judge Ken Scheibenberger; in 2011 with Tommy Schrader; in 2015 with myself, Michelle Hill, and David Roach; and now in 2016……
Sincerely, the wisest thing Felts could have done was hand this matter off to somebody. He’s created quite a noose for himself in election matters.
Now, you have to understand where we as a community are coming from to appreciate the irony facing the local judiciary on the current election matters. Although I am saddened Roy Buskirk is no longer with us, I take a great deal of pleasure knowing that he has to be looking down at all of this with a big smile and a sense of poetic justice here. He and many, MANY other candidates and some elected officials are collectively tired of the ACEB’s BS. Sooner or later, a day of reckoning is going to be at hand and oh how the mighty will fall when that day arrives.
Personally, I can’t wait to see how the current election contestation matter plays out. In my opinion, anything short of a full and complete special election---and I mean all the way back to first having a primary election so that County voters can pick their Republican options and not be limited to a choice manufactured by GOP Chair Steve Shine. (And for those not understanding, the precinct committeemen who get to caucus in replacement candidates are chosen by either getting elected or by appointment. Both the Republican and Democratic Parties have stacked the precinct majority by appointment of the Chair versus by election of the people. I’m pretty confident that Allen County voters don’t want a hand-puppet, hand-picked by Steve Shine. )
Be sure to stay tuned….oh, and one last thing—anyone wanting some basic information on referendums, impeachments, recall elections, etc. should check out this handy Indiana Election Commission guide: http://www.in.gov/sos/
And just for kicks and giggles, folks—remember that members of the Allen County Election Board, members of the Allen County Judiciary, and all other elected or appointed officials have to take an oath of office pursuant to the Indiana Constitution, Article 15, Section 4: “Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office.” [8]
Please click here to see the Oath of Office for members of a county election board:https://www.in.gov/sos/
Please click here and scroll to page numbered 21 for the Oath of Office for a Senior Judge:https://www.in.gov/
But that “cheer” gets tempered by Judge Bobay’s desire to have the parties to the matter to reconvene Wednesday to offer arguments for and against the idea of a special election. [3] For that, his Honor earns another “jeer.” It doesn’t matter what the Democrats want. It doesn’t matter what the Republicans want. It doesn’t matter what the arguments are FOR or AGAINST a special election. It only matters that the election was not handled properly, that the will of the people cannot be determined from how this particular election was handled, that a ruling for a Democrat or for a Republican disenfranchises voters, and that the only real solution (and the only statutory solution) is a SPECIAL ELECTION.
Democrats are going to line up and tell the Judge why there shouldn’t be a special election. Republicans are going to line up and tell the Judge why there shouldn’t be a special election. Members of the ACEB are going to line up and tell the Judge why there shouldn’t be a special election. It’s highly unlikely that any party to this Election Contestation is going to advocate for a special election. It’s the one thing they all agreed on at the very beginning---otherwise, a special election would already be in the works!!
Oh, but I can’t wait to hear some of the lame arguments that these contestation participants are going to offer. Some premises will likely include issues about how much a special election is going to cost the taxpayers. And it will, which is why when this matter concludes every single member of the election board should be replaced as punishment, including the Clerk of Court---who is likely going to be taking over the vacancy created by Tara Klutz anyways. Another anti-special election argument will be about the time needed for the process and that in the interim the people of Allen County will “be without representation.” And no, they won’t – County residents will still have their district Council members and the other two Council At-Large members. The people are just fine….but thank you (to whomever will be bringing forth that argument) for laying the groundwork as to why County Government Consolidation is a bad idea. Had the 2014 referendum actually gained traction, then some people would indeed be without representation. Another anti-special election argument will likely include how voter turn-out in an off election year can’t be guaranteed. And of course it can’t, but then again---it can’t be guaranteed during any election year. Some elections just aren’t very inspiring; other times, things like bad weather come into play. Folks, for every “reason” not to have a special election, there’s an even better reason to have it. All Judge Bobay did was buy the establishment some time on how to wheel and deal and manipulate their chosen outcome.
Judge Bobay also earns a “jeer” for buying into and promoting the ideation that somehow the special election statute in this case is vague. Folks, it’s really not. Unless by vague you mean covering the collective arses of an election board whose members manipulate the outcomes of local elections, then ok….”vague” it is. (wink, wink)
The simple reality here is that the ACEB messed up. Personally, I don’t think it was intentional. THIS time. But intentional or not, the ACEB has a guide to walk them through each and every election situation. [4] The guide is available to the general public. [4] It’s written in pretty easy to understand language, not “legalese.” The only way it could be more simplified is if it had pictures with step-by-step instructions of how to hold fair, free, non-manipulated elections. [4] (Or maybe it needs to be transformed into an adult coloring book??) Even with the manual, it’s not like the local county election board is all alone in a sea of elections. The Indiana Election Commission has an Election Administrator’s portal to all sorts of resources. [5] And if all else fails, the ACEB can always put in a call or send an email to the Indiana Election Commission for advice. [6] The point here is that there is an absolute wealth of information and advisors that our local election board could have reached out to if they had so chosen. But they didn’t. They didn’t even read the manual. [4] Disturbingly, this is the first time that the ACEB has mucked up elections.
Remember the 2011 Schrader matter where the Democrats tried to make the case after Schrader won the Primary election that he wasn’t eligible to be on the ballot. I have an email from the Indiana Election Commission saying that the ACEB should not have removed Schrader from the ballot. Yep, that’s right folks. But locally, with the help of Judge Felts and the ACEB, that is exactly what Democrats accomplished. Funny thing, however, when I bring a similar matter up in 2015 then all of a sudden what the Democrats did in 2011 can no longer be done. Hhhmmm? Imagine that.
;-)As harsh as I may be on Judge Bobay, in fairness—I do realize he drew the short straw on this matter. (But with all due respect, he didn’t have to accept and should not have accepted this matter.)
Where election matters are concerned, Judge Felts has flatly screwed up the Election Contestation process. And folks, I mean REALLY SCREWED it up! Poor Palermo Galindo had to follow my example from 2015 and send out Summons to each party involved---and in all sincerity, he shouldn’t have had to. To some lawyers out there, that may seem reasonable. Except the appropriate statute requires the COURT to do that, not the litigants, in election contestation matters.
Jack Morris set the unholy precedent in 2011 with Schrader---and ironically, I can’t even fault Morris a whole lot there. He was brought into the matter last minute by a pompous windbag masquerading as a former Democratic Party Chair who tried to create the residency issue to get Schrader off the 2011 ballot so that this guy’s tenant---HIS TENANT (as in one person paying money to another person to reside at a specific address)---could be placed on the ballot. (Nothing like a not-so-hidden personal agenda with a side of financial benefit?!?!) Despite Schrader having a signed and notarized affidavit from a federal postal worker affirming to Schrader’s Fort Wayne residency for 7 years; despite Schrader collecting housing assistance, medical assistance, food stamp assistance, etc. through local agencies; and despite having all sorts of trappings of residency from library cards to bus passes to you name it --- Schrader was removed from the ballot for not being a resident?? (raised eyebrow) And the ACEB did so illegally because they did so without a Court Order.
That’s right – the one thing Judge Felts did correctly was not issue a bogus Court Order. Felts was clearly smart enough to know that would have come back, bit him on the arse, and bounced him off the bench. But he (remember---a judge is an attorney first and maintains that license even as a judge), Morris, Hardin, Shine, Pape, Klutz and the other attorneys involved in these matters are forgetting things like truthfulness in statements to others (Rule 4.1), holding themselves and others in the profession to a higher standard (Rule 8.4), and the duty to report the misconduct of other attorneys (Rule 8.3), pursuant to the Indiana Code of Professional Conduct. It’s also plainly obvious that some of these attorneys have forgotten that fraud in the Code of Professional Conduct is lower for attorneys: “…When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, IT IS NOT NECESSARY THAT ANYONE HAS SUFFERED DAMAGES OR RELIED ON THE MISREPRESENTATION or failure to inform….” (emphasis added) [7]
This failure to remember the duties spelled out in the Indiana Code of Professional Conduct is plainly evidenced later in 2011, in a second action (after dismissing Morris’ election contestation matter), the Court dismissed Schrader’s and mine Petition to Review the Findings of the Election Board and Felts did so on a technicality. That technicality---(drumroll please)---that there was no summons for what was essentially an administrative appeal. (Folks--Administrative appeals do not require a summons.) The more ridiculous thing here---and the legal community will appreciate this more than the non-legal community----is that (1) Schrader did try to submit a Summons that was actually drafted by a local, licensed attorney but the Clerk of Court’s office rejected it, saying that it wasn’t needed because this was an Administrative Appeal. (Are you getting this? The deputy clerk didn’t think it was necessary. I was there when Schrader tried to submit it. I was there when the deputy clerk returned it to him. And I was the one that asked for Clerk of Court Liz Borgmann to come out of her office, do her job, and confirm whether that was correct or not. The deputy clerk asked but the Clerk of Court refused to engage.) And (2) the point of a Summons is to let the other side know that there is a lawsuit against them---with all the media coverage on the matter, including a quote from then-ACEB attorney Tom Hardin (now an ACEB board member)—acknowledging the existence of the lawsuit…and that was after Hardin was the one who told Schrader how long he had to appeal the matter. So the required “summons” had already essentially been given by Hardin to Schrader verbally and as such Schrader didn’t need to tell Hardin and the ACEB when he would be initiating his lawsuit against them. They had told him what the time frame was. But the Court refused to hear a Summons by Publication argument or an argument for a defective summons or an argument that a summons wasn’t needed as a matter of Administrative appeal procedure and plain ol’ common sense.
There are so many more examples to draw from here where the ACEB with the help of Judge Felts has just totally manipulated the election process --- in 2007 with Matt Kelty; in 2010 with Judge Ken Scheibenberger; in 2011 with Tommy Schrader; in 2015 with myself, Michelle Hill, and David Roach; and now in 2016……
Sincerely, the wisest thing Felts could have done was hand this matter off to somebody. He’s created quite a noose for himself in election matters.
Now, you have to understand where we as a community are coming from to appreciate the irony facing the local judiciary on the current election matters. Although I am saddened Roy Buskirk is no longer with us, I take a great deal of pleasure knowing that he has to be looking down at all of this with a big smile and a sense of poetic justice here. He and many, MANY other candidates and some elected officials are collectively tired of the ACEB’s BS. Sooner or later, a day of reckoning is going to be at hand and oh how the mighty will fall when that day arrives.
Personally, I can’t wait to see how the current election contestation matter plays out. In my opinion, anything short of a full and complete special election---and I mean all the way back to first having a primary election so that County voters can pick their Republican options and not be limited to a choice manufactured by GOP Chair Steve Shine. (And for those not understanding, the precinct committeemen who get to caucus in replacement candidates are chosen by either getting elected or by appointment. Both the Republican and Democratic Parties have stacked the precinct majority by appointment of the Chair versus by election of the people. I’m pretty confident that Allen County voters don’t want a hand-puppet, hand-picked by Steve Shine. )
Be sure to stay tuned….oh, and one last thing—anyone wanting some basic information on referendums, impeachments, recall elections, etc. should check out this handy Indiana Election Commission guide: http://www.in.gov/sos/
And just for kicks and giggles, folks—remember that members of the Allen County Election Board, members of the Allen County Judiciary, and all other elected or appointed officials have to take an oath of office pursuant to the Indiana Constitution, Article 15, Section 4: “Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office.” [8]
Please click here to see the Oath of Office for members of a county election board:https://www.in.gov/sos/
Please click here and scroll to page numbered 21 for the Oath of Office for a Senior Judge:https://www.in.gov/
SOURCES:
[1] https://www.facebook.com/
[2] http://wane.com/2017/01/
[3] http://
[4] https://www.in.gov/sos/
[5] http://www.in.gov/sos/
[6] http://www.in.gov/sos/
[7] http://www.in.gov/
[8] http://
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