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Wednesday, March 30, 2011

Ind. Gov't. - Judge rules in Lake County election dispute [Updated]

Bill Dolan of the NWI Times reported earlier today in a story that began:

CROWN POINT | Lake Superior Court Judge Jesse Villalpando on Friday will make what could be a first-of-its kind decision on whether nonpartisan school board members must give up their right to run for public office as a member of a political party.

But the man at the center of the dispute, George Janiec, a School City of Hammond board member who wants to run for Hammond mayor, is hardly a trailblazer in Lake County political history.

Four decades ago, Ralph Potesta used his membership on the same school board as a springboard to win election as a Republican to the Indiana State Senate.

They are not the only ones to try. But Dawn Tomich, one of Hammond Mayor Thomas McDermott Jr.'s appointees to the city's Collegebound Exceptions committee, challenged Janiec on grounds his bid for the Republican Party nomination for mayor violates the spirit of state and local rules forbidding local school board members from political campaigning.

The Democrat Party members of the Lake County Elections Board, with no apparent legal precedent, agreed a new standard should be set for school board members and removed Janiec as a potential challenger to incumbent McDermott.

If Villalpando now restores Janiec's mayoral run, Janiec would join two other school officials on the May 3 ballot — LaBrenda King-Smith, a Gary school board trustee and Democrat running for the 5th District City Council seat, and Michael Stills, a Lake Station school board member who is among five Democrats running for an at-large City Council seat. [ILB note - The NWI Times has now replaced this story with a revised story, but used the same link]

Now, in an Order dated today, "March 30, 2011 at 3:00 p.m.," Judge Villalpando writes:
1. Did Janiec breach an implied statutory duty set forth in I.C. 20-25-3-3(c)(4) that he would not be influenced by any consideration of politics upon taking his oath of office on July 1, 2010, when he declared his candidacy for partisan municipal office in February, 2011?

2. Did the Lake County Board of Election and Registration abuse its discretion when it disqualified Janiec as a candidate for mayor on the basis that Janiec breached a statutorily created legal duty implied in his oath of office upon assuming office as a nonpartisan elected Hammond School Board Member when he filed as a partisan candidate for Mayor, City of Hammond?

Judge Villalpando rules that the Lake County Election Board properly barred (or did not improperly bar) George Janiec as a candidate for Hammond Mayor:
The court finds as a matter of law that the Election Board acted consistent with legislative
authority pursuant to: I.C. 20-25-3-3(c)(4), contrary to the legal authority cited in either Petitioner’s or Respondent’s legal memoranda. I.C. 20-25-3-3 specifically applies to the question of conduct to which eligible school board members must adhere. This statute is unambiguous and spot on as it applies to the operative facts of this case. On July 1, 2010, Janiec took an oath of office as a member of the Hammond School Board. I.C. 20-25-3-3 imposes the legal standards for this court to apply in this case. On July 1, 2010 Janiec pledged to not be influenced by any consideration of politics in the performance of official duties as a member of the school board. “On the day before filing closed in February, 2011” as Janiec, himself told the court on March 29, Janiec broke that pledge when he filed his Declaration of Candidacy for Municipal Election, declaring himself a partisan candidate for Mayor, City of Hammond. * * *

The legal case before this court, on the operable facts, show that this is not a case of first impression as argued by the attorney for the Election Board. * * *

The Indiana Code indeed, contains the policies applicable to the relevant question of conduct of school board members under I.C. 20-25-3-3. The Supreme Court, pursuant to the legislature’s Administrative Orders and Procedure Act cited above has set forth the standard of judicial review in LTV Steel v Griffin. The trial court’s power of judicial review is limited. Consequently, this court finds that Janiec and Janiec alone created the condition that undermined his candidacy for mayor according to any straightforward examination of I.C. 20-25-3-3(c)(4). Thus, the court holds that the Election Board did not abuse its discretion in its March 7th ruling barring Janiec’s candidacy, by law this court cannot set aside the Board’s Final action.

[Updated 3-31-11] Bill Dolan's NWI Times story has now been updated, including a new headline: "Janiec loses bid to return to Hammond mayoral race." The new story begins:

CROWN POINT | Lake Superior Court Judge Jesse Villalpando refused Wednesday to restore Hammond School Board member George Janiec to the May 3 primary ballot as a Republican candidate for Hammond mayor.

The judgment appears to be a victory for incumbent Mayor Thomas McDermott Jr., who nearly lost to Janiec in 2007. McDermott also complains Janiec created an illegal conflict of interest by using his position as a School Board trustee as a springboard for a second campaign to win City Hall.

Villalpando's order states, "Janiec is the person who created this controversy and logically is the only person who can remove the condition undermining his municipal ambitions. He still has time to help himself."

The judge doesn't explicitly tell Janiec to resign from the School Board this week, but the judge is setting a "final hearing" for 3 p.m. Thursday so attorneys in the case can "inform the court of any substantial change of circumstances at that time."

Chelsea Schneider Kirk's story today in the Gary Post-Tribune begins:
Lake Superior Court Judge Jesse Villalpando has placed the ball in George Janiec’s court.

Janiec, who wants to run as a Republican for Hammond mayor, created the controversy surrounding his candidacy when the nonpartisan school board member decided to run for office, Villalpando ruled on Wednesday.

And, as Villalpando sees it, Janiec is the one person who can remove it.

Villalpando found that the Lake County Election Board didn’t abuse its powers in removing Janiec from the May 3 ballot.

He ruled Janiec breached the oath of office he took months ago as a new school board member and violated state law requiring school board members avoid political influences.

“On July 1, 2010, Janiec pledged to not be influenced by any consideration of politics in the performance of official duties as a member of the school board,” according to Villalpando’s ruling.

However, the judge maintained, “He still has time to help himself.”

A final hearing in Janiec’s appeal is set for today. Janiec’s attorney, Cordell Funk, didn’t wish to comment ahead of today’s hearing.

Posted by Marcia Oddi on March 30, 2011 06:04 PM
Posted to Indiana Government