Hammond Mayor Judge Villalpando's Order

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					STATE OF INDIANA )                       SITTING IN THE LAKE SUPERIOR COURT
                 ) SS                    COUNTY DIVISION ROOM 4
COUNTY OF LAKE )                         HAMMOND, INDIANA


GEORGE T. JANIEC           )              CAUSE #45D12-1103-MI-00014
     Plaintiff/Petitioner  )
                           )
v                          )
                           )
LAKE COUNTY BOARD OF       )
ELECTION AND REGISTRATION )
      Defendant/Respondent )


                                JUDGMENT ORDER

On March 24, 2011, Petitioner George T. Janiec appeared in person and with Attorneys

R. Cordell Funk and William I. Fine. The Respondent, Lake County Board of Election

and Registration appeared by its Director, Sally LaSota and with Attorney James L.

Wieser. The cause was submitted on the Petitioner’s Verified Request for Preliminary

and Permanent Injunctive Relief and Request for a Temporary Restraining Order and

Request for Review of Final Agency Action. The matter was taken under advisement by

the Court. On March 28, 2011, the Court Sua Sponte ordered an Emergency Evidentiary

Hearing be held on March 29, 2011 at 8:30 a.m. On March 29th the Parties, though their

attorneys, submitted Stipulations of Fact that were accepted by the Court and are part of

this record. Additional evidence was entered and the Court entered its Order granting

Petitioner’s request Consolidating the Petition for Temporary Restraining Order and

Request for Preliminary Injunctive Relief as one consolidated hearing pursuant to Indiana

Trial Rule 65(A)(2). Upon taking the matter under advisement and reviewing the parties’

legal memoranda, the Court now enters its Statement of Issues on the Case, Procedural

History, Findings of Operative Fact, Legal Authority, and Judgment as follows:



                                                                                       1
                        STATEMENT OF ISSUES ON THE CASE

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 non-

partisan elected Hammond School Board Member when he filed as a partisan candidate

for Mayor, City of Hammond?



                                 PROCEDURAL HISTORY

On March 29, 2011, this court accepted revised stipulations which were tendered in open

court and were based on the parties’ agreement that these stipulations of fact supersede

and replace the stipulations filed with the court and read into the record on March 24,

2011. These revised stipulations constitute the procedural history upon which the court’s

jurisdiction was assumed and the court will not re-state these stipulations in this order.



                            FINDINGS OF OPERATIVE FACT

     1.      The Petitioner, George T. Janiec is a member of the Hammond School Board

             elected at the 2010 Lake County Indiana Primary Election. The Petitioner

             undertook an oath of office pursuant to I.C. 20-25-3-3 and assumed his school




                                                                                               2
     board position effective July 1, 2010 pursuant to enabling statutory authority

     set forth in I.C. 20-23-8-4 authorizing local plans for an elected school board

     for the School City of Hammond, Lake County, Indiana.



2.   The Petitioner timely filed a Declaration of Candidacy for Municipal Election

     as a partisan candidate for the office of Mayor, City of Hammond, Lake

     County, Indiana. This Declaration was filed one day prior to the close of the

     2011 primary filing period.




3.   Pursuant to I.C. 20-23-8-7, the School City of Hammond adopted a local plan

     that sets forth the manner of an election for five school board members, on a

     non-partisan basis, at the primary election that county officials are nominated

     in conformity with the requirements of I.C. 20-23-4-27.



4.   Ms. Dawn Tomich is the challenger of Janiec’s filing for Mayor. Tomich’s

     factual challenge to Janiec’s Declaration of Candidacy was not contested by

     the Petitioner at either evidentiary hearing. The Petitioner offered no evidence

     in rebuttal to Tomich’s contention that the Petitioner breached his implied

     statutory duty set forth in his oath of office when the Petitioner filed for

     partisan municipal office in February, 2011.




                                                                                   3
                                    LEGAL AUTHORITY

1.        I.C. 20-25-3-3 states in pertinent part as follows:

Board of school commissioners; qualifications; conflicts of interest; oath;
compensation
        (c) Each member of the board shall, before assuming the duties of office, take an
oath, before a person qualified to administer oaths, that:
        (4) in the performance of official duties as a member of the board, including the
selection of the board’s officers, agents, and employees, the member will not be
influenced by any consideration of politics or religion; and


     2.      Pursuant to I.C. 20-23-8-4

 “Plan”
    Sec. 4. As used in this chapter, “plan” means the manner in which the governing body
of a school corporation, is constituted, including the number, qualifications, length of
terms, manner, and time of selection, either by appointment or by election of the
members of the governing body.
As added by P.L.1-2005, SEC.7


  3.      I.C. 20-23-8-7 states in pertinent part as follows:
Contents of Plan
  Sec. 7. (a) A plan or proposed plan must contain the following items:
          (1) The number of members of the governing body, which shall be:
                    (A) three (3);
                    (B) five (5); or
                    (C) seven (7);
          members.
          (2) Whether the governing board shall be elected or appointed.
          (4) If elected, whether the election shall be at the primary or at the general
  election that county officials are nominated or elected, and a general description of
  the manner of election that conforms with the requirements of I.C. 20-23-4-27.


     4.      The Court takes judicial notice of: School City of Hammond Board Policy

             Handbook BP-9000 – Operation Series. B.P. 9301 – Code of Ethics (Attached

             to this Order as Addendum 1)

BP9301 – Code of Ethics




                                                                                       4
The relationships of the Board as a group of its individual members shall be governed by
the Code of Ethics of the Indiana School Board Association.

A School Board Member shall honor the high responsibility which his/her membership
demands:

       BY thinking always in terms of “children first.”

       BY understanding that the basic function of the School Board member is “policy-
       making” and not “administrative” and by accepting the responsibility of learning
       to discriminate intelligently between these two functions.

       BY refusing to “play politics” in either the traditional, partisan, or in any petty
       sense.

       BY representing at all times the entire school community.

       BY accepting the responsibility of becoming well-informed concerning the duties
       of Board members and the proper functions of public schools.

       BY recognizing responsibility as a state official to seek the improvement of
       education throughout the state.

A School Board Member shall meet his/her responsibilities to his/her community: in
pertinent part:

       BY refusing to use his/her position on a School Board in any way whatsoever for
       personal gain or personal prestige.


5.     The Indiana Supreme Court set out the applicable standard of judicial review in

LTV Steel Co. v Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000):

       While the legislature has granted courts the power to review the action of state
governmental agencies taken pursuant to the Administrative Orders and Procedures
Act (“AOPA”), this power of judicial review is limited. A court may only set aside
agency action that is:

       (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
           with law;
       (2) contrary to constitutional right, power, privilege, or immunity.
       (3) In excess of statutory jurisdiction, authority, or limitation, or short of
           statutory right;
       (4) Without observance of procedure required by law; or
       (5) Unsupported by substantial evidence



                                                                                        5
                                      JUDGMENT

The Indiana Supreme Court set forth the standard of judicial review in LTV Steel

Company v Griffin, for this court to apply in reviewing the relevant final action of the

Lake County Election Board on March 7, 2011. This power of judicial review, granted

by the legislature, is limited. Accordingly, this court may only set aside the Election

Board’s Order of March 7, 2011, if the body of evidence in this trial court’s record

establishes that the Election Board abused its discretion by disqualifying George T.

Janiec from appearing on the Republican ballot for Mayor, City of Hammond, in the

2011 Primary Election.



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.




                                                                                          6
Janiec offered no evidence at either the March 24 hearing or subsequent to the Court

issuing its Sua Sponte Order on March 28, which specifically ordered the parties to: “be

prepared to offer witnesses and other admissible evidence to support both Petitioner’s

burden of proof and Respondent’s legal defense in this case.” An Emergency Evidentiary

Hearing on March 29 was set for this purpose. The court re-opened the evidence on

March 29 and although Janiec testified that the Election Board’s final action of March 7

caused harm to his candidacy, he offered no evidence to rebut the Election Board’s

decision that Janiec created this controversy, exclusively, when Janiec breached his oath

of office entered on July 1, 2010, the moment he filed his Declaration of Candidacy as a

partisan candidate for Mayor in February 2011.



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.               Additionally, the

Petitioner’s attorneys are also incorrect in arguing that the Election Board created new or

additional qualifications or standards that a prospective candidate must meet in order to

be on the ballot. In other words, the Petitioner and the Respondent both mis-apply the

relevant law in the case before this court. Hence, as a matter of law, Petitioner’s legal

argument is not applicable to the case at bar. Additionally, Respondent’s argument is

irrelevant.



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




                                                                                            7
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.


The holding in this case is limited to the specific operative facts stated in this case and is

not intended to establish new policies pertaining to school board member’s

constitutionally protected political activities, other than filing a Declaration of Candidacy

for partisan municipal office while holding non-partisan office.



Finally, 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.



WHEREFORE, the Court finds as follows:

   1.      Janiec breached the oath of office he entered into on July 1, 2010 in violation

           of I.C. 20-25-3-3(c)(4).

   2.      The Election Board did not abuse its discretion on the evidence before the

           board on March 7, 2011 in this matter.

   3.      The Petitioner offered no evidence to this court rebutting the factual

           allegations contained in Tomich’s Candidate Filing Challenge and Addendum

           attached thereto and admitted into evidence as Respondent’s Exhibit Group A.



                                                                                            8
   4.      Consequently, the court, as a matter of law, cannot set aside the Election

           Board’s final action pursuant to its limited power of judicial review.

   5.      The Court, sua sponte, sets this matter for Final Hearing on Thursday, March

           31, 2011 at 3:00 p.m. in this courtroom. The parties and their attorneys are

           advised to inform the court of any substantial change of circumstances at that

           time.


   All of this is ordered on March 30, 2011 at 3:00 p.m.


   SO ORDERED:


                                              ____________________________________
                                              Jesse M. Villalpando, Special Judge


I, Christine Vulpitta do certify that on this day I directed a copy of the foregoing order to
the Parties of Record and members of the new media in attendance on March 24, 2011,
via electronic mail. The distribution list was compiled at the conclusion of the hearing on
March 24, 2011 from individuals and organizations who tendered their respective e-mail
addresses to the administrative assistant of this court. The distribution list is as follows:

William Fine, Attorney for Plaintiff          willfine@att.net
                                              (Acknowledgement of receipt requested)
R. Cordell Funk, Attorney for Plaintiff       rcordellfunk@yahoo.com
                                              (Acknowledgement of receipt requested)
James L. Wieser, Attorney for Deft.           jlw@wieserwyllielaw.com
                                              (Acknowledgement of receipt requested)
Don Levinson, Attorney Challenger             donlevinson@airbaud.net
                                              (Acknowledgement of receipt requested)
Shana Levinson, Attorney Challenger           shanalevinson@airbaud.net
                                              (Acknowledgement of receipt requested)
Joe Hero                                      nrck.nwpt@att.net
Mary Ellen Slazyk                             tiger1localnet.com/tiger@localnet.com
Jim Sheehan                                   jimsheehn@sbcglobal.net
Rob Pastore                                   robert_pastore@us.aflac.com
Bill Dolan                                    bdolan@nwitimes.com
Michael Puente                                mpuente@wbez.org
Chelsea Schneider Kirk                        cschneider@post-trib.com



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Debbie Wargo   debbie@wjob1230.com
Pete Nickeas   pete.nickeas@nwi.com




                     ______________________________
                     Christine Vulpitta
                     vulpicm@lakecountyin.org




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