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Thursday, July 26, 2007

Ind. Decisions - Franklin County Commissioner wins in holdover case, now wants attorney fees

A story from last week in the Brookville American-Democrat relates that Don Vonder Meulen:

... a Democrat, won the Second District election against Republican incumbent Lou Linkel in the 2006 election.

However, Linkel’s was a holdover office, apparently the only commissioner holdover office in the state. It is believed the holdover office was created in the 1960s at the request of the Indiana Department of Election.

Therefore, Vonder Meulen’s Certificate of Election issued by Franklin County Clerk Marlene Flaspohler had a start date of Jan. 1, 2008.

Vonder Meulen filed a Quo Warranto suit in Franklin Circuit Court in December 2006 seeking a change in the Certificate of Election to Jan. 1, 2007.

The story continues:
Franklin County Commissioners and Franklin County Council decided to pay the legal fees for Linkel and Flaspohler because they were sued in their capacity as county officials.

Vonder Meulen said he unsuccessfully attempted to compromise with Linkel by offering Linkel a chance to serve the first six months in 2007 and Vonder Meulen become commissioner for the final six months.

Special Judge P. Thomas Snow, Wayne Superior Court I, ruled in Vonder Meulen’s favor in April, installing Vonder Meulen as the Second District commissioner.

Linkel then filed a motion asking Snow to pay both Linkel and Vonder Meulen for the entire year.

No ruling has come down from Snow on that motion. Snow’s office could not be reached for comment on Tuesday.

If Snow approves that motion and if council approves Vonder Meulen’s claim for $7,400 in attorney fees, the cost to county taxpayers for all the attorney fees and costs will be about $60,000.

The story contiinues:
Vonder Meulen’s claim was not signed by the other two Franklin County Commissioners, Tom Wilson and Eric Roberts, and it did not have a claim number. * * *

Roberts pointed out that in newspaper articles published during the lawsuit, Vonder Meulen pledged to pay his own attorney fees.

In a document Vonder Meulen presented to Wilson and Roberts, Vonder Meulen laid out his reasoning process.

“Lou’s fees were basically paid out of courtesy,” Vonder Meulen’s conclusion states. “The court determined that he was the former commissioner during the time when most of his fees were incurred. By paying his fees, the county took rightful responsibility for having an out-dated and illegal election practice.

“The fees on the claim that I submitted were necessitated because the former commissioner was attempting to continue as sitting commissioner,” the document continued. “I believe that the payment of these fees should hold priority over others because they were for services provided to the sitting commissioner and were made necessary by the same out-dated and illegal election practice.”

Most of the legal fees incurred in the case came after the first of the year when Vonder Meulen should have been the sitting commissioner, Vonder Meulen told Wilson and Roberts.

More from the very long story:
Commissioners voted to end the holdover office after Vonder Meulen served four years from 2008-2012. The next person holding that position would have a three-year term from 2013-2016, with four-year terms continuing after the 2016 election.

Vonder Meulen said he wanted the situation changed immediately because by continuing it, the county was breaking state law. Also, several people contacted him and wanted him to be commissioner immediately and not wait a year.

For background, see this Dec. 28, 2006 ILB entry titled "Commissioner-elect's starting date on job being questioned in civil suit." Near the end of the entry the ILB observes: "A similar circumstance may have resulted in Martin County, where the appointed clerk was beaten in the May 2006 primary, but because of the timetable will serve all 2007. It won't be until Jan. 2008, when the new clerk will take over." It took an act of the General Assembly to put that election back on track.

The ILB would like to post a copy of the April ruling of Special Judge P. Thomas Snow, Wayne Superior Court I, and would appreciate hearing from anyone who can fax or email the ruling. Pleadings would also be welcome.

Posted by Marcia Oddi on July 26, 2007 11:59 AM
Posted to Ind. Trial Ct. Decisions