Indiana Disciplinary Commission Waits Nearly A Year Before Notifying Attorney Ogden of Grievance Filed by (Now) Disciplined Muncie Judge

Former Judge Dianna Bennington

Today I opened my mailbox to find a nice thick envelope from the Indiana Supreme Court Disciplinary Commission.  It was notification the Commission that now former Muncie City Judge Dianna Bennington had filed a Rule 8.2 grievance against me for two blog articles I wrote critical (here and here) and comments I had made on a newspaper website criticizing her mishandling of a contempt case involving Curtis Westbrook.  The envelope contained not only the brief letter from DC Executive Secretary Witte but copies of my blog and comments made in conjunction with the story.

Bennington subsequently was charged with 13 counts of misconduct filed by the Judicial Qualifications Commission based upon her handling of the Westbrook contempt and other cases as well as a domestic disturbance she was involved in.  Bennington recently agreed to a lifetime ban on serving as a judge in settlement of the charges.

Bennington filed her grievance against me on February 25, 2014.  In the nearly one year time since then, Witte and the Commission provided me with zero notice that a grievance had been filed against me. 

That is in keeping with the manner in which the Disciplinary Commission operates.  Former Executive Secretary Lundberg maintained a grievance against me for at least 14 years, filed against me in 1994, never informing me that the grievance had (supposedly) been dismissed in 2008.  (Despite my request for the information, the Commission has provided no proof whatsoever that it was dismissed in 2008 as claimed by the Commission.)  That grievance involved supposedly false information I had submitted with a grievance I had filed back in 1990 against a Marion County magistrate.  When, in 1994, I indicated to Gov. Bayh officials that I wanted to talk to investigators about the magistrate, Lundberg within days filed a one sentence grievance saying I had provided false information with the 1990 grievance.  I took it as an attempt to stop me from talking to investigators and to discredit what I had claimed in the 1990 grievance.

Not once in 14 years did Lundberg ever identify what I supposedly lied about or provided me with the first shred of evidence in support of his allegation.  In response, I suggested he submit the matter to the Marion County Prosecutor for a perjury prosecution if I lied.  He did.  I met with the grand jury investigator who was baffled that Lundberg had sent over the allegation against me but had no given them no evidence whatsoever in support of his one sentence allegation.  Needless to say, Lundberg's phony accusation was not even deemed worthy of submitting to a grand jury.  Years later, the magistrate was up for another judicial opening.  Within a week or so of a story appearing in the Indianapolis Star about the opening, Lundberg sent me a certified letter saying the several year dormant grievance was being docketed for investigation, which I took as another attempt by the Executive Secretary to silence and discredit me should I talk to investigators.  In the entire time, at least 14 years that the grievance pended, the Commission did no investigation.

My experience is not alone.  Court of Appeals Judge Buchanan, with whom I clerked, had a grievance pending against him for years that went nowhere.  (Judge Buchanan, along with Justice Pivarnik, had been an opponent of the appointment to the Court of Randall Shepherd, who later, as Chief Justice, exercised tremendous authority over the Disciplinary Commission that maintained the grievance against Buchanan.)  The other day, I learned of a grievance that was pending multiple years against a prominent attorney only to apparently be dismissed with the aid of Barnes & Thornburg, the law firm which many say exercises undue influence over the Disciplinary Commission. 


Michael Witte

Indeed I strongly suspect that that Barnes & Thornburg was behind my disciplinary charges.  It was only when I interviewed for a job with the Pence administration and had applied for an attorney/watchdog position with the formerly named Public Employee Retirement Fund (PERF), with which B&T's clients are very involved, that formal charges were rushed forward by the Disciplinary Commission based on never investigated grievances Witte had filed against me (after I had criticized the Commission on my blog), grievances which had sat dormant for two years.  The DC in my case made no attempt to contact me or my witnesses before filing charges.  I would add that a Barnes & Thornburg partner, against whom I had filed a grievance against and was shortly thereafter appointed to the DC, also apparently sat in on votes to file the grievance and charges against me.

Let's face It, the Indiana Supreme Court Disciplinary Commission operates as a star chamber, working under a cloak of secrecy with virtually no oversight.  Grievances should not be allowed to pend for years; baseless charges filed by the DC should be subject to summary dismissal.  Both Lundberg and Witte abused their power, with the latter now using the immense authority of the Disciplinary Commission to go after public critics and settle old scores.

The time is long past for Chief Justice Rush and the Indiana Supreme Court to order an independent investigation of the Disciplinary Commission, to conduct an audit of the secret grievance files maintained against attorneys, and reform the rules so that there is more transparency and evenhandedness in the handling of disciplinary cases.  The attorney disciplinary process in Indiana should focus first and foremost on protecting the public from dishonest attorneys, and certainly never be used to protect the Disciplinary Commission and its Executive Secretary from being exposed and criticized for their own misconduct in enforcing the rules.

Muncie City Judge Issues Arrest Warrant on 22 Year Old Fine

The Muncie Star Press reports:

It's been a long time -- more than 22 years, to be exact -- since Jay Hart, at the time a 19-year-old Frankfort resident, came to Muncie for a day of fun.

Too much fun, as it turned out. After visiting a local skate park, Hart attended a party near the Ball State University campus. His resulting intoxication would end with his arrest at a Muncie skating rink.

The teenager pleaded guilty in Muncie City Court back in 1992 to illegal consumption of alcohol, and over the ensuing decades, his misadventures in Muncie were largely forgotten.

Until Feb. 11, that is. That's the day City Court Judge Dianna Bennington, elected to the bench 20 years after Hart's local prosecution, issued a warrant for his arrest, alleging he had failed to pay a related fine and court costs, then totaling $150, in 1992.

"To walk out to my mailbox and find a warrant for my arrest, it really aggravates me," Hart told The W/R Report last week. "I'm a 41-year-old dad, and I run a business."

Hart maintains he paid his fine and court costs -- in cash -- within a few months of his February 1992 sentencing by then-City Court Judge Linda Ralu Wolf. Nearly 22 years later, however, he hasn't retained any receipt of that payment.

It should be noted Wolf was apparently never informed of that payment. She issued failure-to-pay warrants for Hart's arrest seven times between October 1992 and May 1998. At the time Bennington issued her own warrant last month, no action had been taken in the case for more than 15 years.

Hart maintains that far too much time has passed to expect him to be able to produce proof of his payment -- or to put him at risk of being jailed, on Bennington's warrant, should he be pulled over for a minor traffic infraction.

The normal collection statute of limitations is 10 years.  Although there doesn't appear to be a statute of limitations on a court collecting on an unpaid fine, basic principles of due process would suggest that 22 years is too late to be engaging in collection efforts.  To expect someone to keep a receipt for more than two decades is not realistic.

I talked to Mr. Hart and am in fact quoted in the article which, unfortunately, is behind a pay wall.  Hart said when he called the court, he said he was told by court staffers that they were instructed by the judge to go through old files to try to find fines that were not shown as being paid.   The reporter was not able to get confirmation of this practice before reporting what happened to Hart.

Unfortunately the local attorneys in Muncie were all afraid of speaking out about what happened to Mr. Hart.  While they may fear reprisals in Judge Bennington's court, probably a bigger part of the reluctance is the Disciplinary Commission's aggressive enforcement of Rule 8.2 to charge attorneys who dare to criticize judges.  Yet if the Muncie City Court is issuing arrest warrants on decades old fines, it would be an outrageous practice that attorneys should be publicly condemning.  Attorneys are natural whistleblowers when it comes to the judicial branch and when they are silenced the public, people like Mr. Hart, pay a price.

Muncie City Judge Has Man Jailed for Passing Out Letter Criticizing Her

It is a story that might get national attention as an example of an abuse of judicial authority.  The Muncie Star-Press reports:

A critic of Muncie City Court Judge Dianna Bennington is in the Delaware County jail after being found guilty of contempt of court.

Curtis L. Westbrook, 55, was arrested Tuesday, a day after the contempt finding.

Curtis Westbrook

According to a document provided to The Star Press by a court employee, Westbrook was sentenced to 10 days in jail Monday after the judge ruled he was "creating confusion that disturbed the business and proceedings of the court by distributing a letter to undermine the authority of the court and to provide legal advice to defendants in the courtroom."

...

Westbrook in recent weeks has distributed a letter calling the judge -- who was elected to the bench in 2011 -- "One-Term Bennington" and referring to her "fiasco judgeship."

A member of Westbrook's family was charged in Muncie City Court with domestic battery in January 2013.

Curtis Westbrook has maintained his family member, and others, have not been informed in advance that City Court trials are bench trials, with Judge Bennington, rather than a jury, deciding a defendant's guilt or innocence. Cases of City Court defendants seeking jury trials are transferred into the Delaware Circuit Court system.

... 

The letter distributed by Curtis Westbrook -- and dropped off recently at The Star Press -- calls the process by which City Court cases are transferred a "well-kept secret." He also maintains Bennington and others have a financial motivation to "keep the City Court litigants in the dark concerning their right to a jury trial," and suggests defendants could file misconduct complaints against the judge and attorneys involved in their prosecution.

"Finally, remember this come election time!" the Muncie man concludes.

According to Delaware County jail records, Westbrook is scheduled to be released at 8 a.m. Feb. 21.

Judge Bennington clearly doesn't understand the difference between criminal and civil contempt. The Court of Appeals in Mitchell v. Stevenson, 677 NE 2d 551, 560 (Ind. App. 1997) explains the difference: 

A civil contempt s a violation of a court order resulting in a proceeding for the benefit of the aggrieved party. As such, any type of penalty in a civil contempt proceeding must be coercive or remedial in nature. In contrast, a criminal contempt is an act directed against the authority of the court which obstructs the administration of justice and which tends to bring the court into disrepute.  Thus, any type of penalty is punitive in nature because its purpose is to vindicate the authority of the court and it benefits the State rather than the aggrieved party. 

Certainly Judge Bennington has the right to, if necessary, take Westbrook into custody to protect her courtroom from being disrupted.  That is a remedial measure for civil contempt.   But the fact is Westbrook had already left the courtroom. He was taken into custody when he came back.  Judge Bennington wanted Westbrook punished for his previous conduct in interfering with her courtroom.  That is clearly criminal, not civil, contempt.

Because the allegation constituted criminal contempt, such charges must be brought in the name of the State of Indiana by the prosecutor.  In that proceeding, Westbrook should have been afforded all the protections that go to criminal defendants, including the right to a public defender if Westbrook could not afford an attorney.  Further, the impropriety of Judge Bennington sitting in judgment of a harsh critic of hers is frankly off the charts.

The bottom line is that Judge Bennington appeared to very offended by Westbrook's public criticism and exercised extremely poor judgment in trying to silence her critic. The irony is that while Mr. Westbrook's letter criticizing Judge Bennington would have had little effect on her political prospects for re-election, the judge's abuse of her authority has created a much bigger issue that is more likely to cause her to lose re-election.

Judge Bennington would be well advised to seek legal counsel who I am sure will advise her: 1) to admit she made a mistake; and 2) to release Mr. Westbrook from jail...immediately.   An apology to Mr. Westbrook would also be in order but I won't get my hopes up.