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.

Indiana Disciplinary Commission Doubles Down on Retaliation Against Ogden; Points to Need for New Leadership

No one though should accuse Executive Secretary Witte of not being persistent.  With his prosecution of me apparently not being well received before the Supreme Court, he filed a new grievance against me.  This time Witte is claiming that I violated the confidentiality of a person who contacted me about filing a lazy judge motion against Marion County Judge Patrick McCarty who she believed had mishandled her child custody case, leaving her child in danger.  The potential client had reached out to me because she had found my blog and wanted legal representation and her story told.  I informed her I could not represent her because McCarty had been a witness against me with regard to one of the grievances Witte had filed.  I didn't want it to look like my filing a lazy judge praceipe was retaliation against Judge McCarty for testifying against me.

Executive Secretary Michael Witte

A few days later the woman was shot 13 times by her ex outside a day care center on the northwest side of Indianapolis.  I wrote on my blog about her being shot and the lazy judge praecipe she filed pro se that Judge McCarty had attempted to reject but was overruled by the Indiana Supreme Court.  On my blog, I wrote about my having talked to the woman about legal representation.  (By the way, the fact that an attorney and possible client meet and discuss possible legal representation is not in and of itself protected by attorney-client privilege.)   The woman unbelievably survived the shooting.  Although she said she had no problem with the article I wrote, that did not stop Witte from filing a grievance against me, without even talking to her, in an effort to claim the woman's confidentiality rights had been violated. 

One would think Witte would have been chastised by the Supreme Court opinion in my case rejecting almost the entire Disciplinary Commission's prosecution of me.  Not so. The Commission is doubling down on its retaliatory efforts  Apparently the very Disciplinary Commission attorney who prosecuted me and badly lost, who was also the interim Executive Secretary of the Commission between Donald Lundberg's tenure and Michael Witte, is personally conducting an investigation of the new grievance.

One of the biggest complaints from Indiana attorneys is that they can't speak out about the disciplinary process because they might face retaliation from the Indiana Disciplinary Commission.  Indeed when I first wrote about the Commission in January 2011, and its targeting of small firm and sole practitioners almost exclusively, I immediately appeared on the radar of Executive Secretary Michael Witte who within a matter of months began filing grievances against me. 

The Executive Secretary has almost absolute power when it comes to dragging attorneys into the disciplinary process.  Even if the Commission loses, the attorney's career is often irreparably damaged and the attorney forced into paying tens of thousands of dollars in legal fees and expenses Thus, the Executive Secretary needs to be someone with good temperament and who is above using his or her position to retaliate against critics and those who best the Commission before the Supreme Court. 

People should reminded that this is not the first time Witte appears to have used his official position  to seek retaliation against people who oppose him.  Witte began his career at the Disciplinary Commission with a grievance filed against him alleging he had abused his position as county attorney to settle political scores.  Republicans in Dearborn County had backed a different candidate in the primary against Witte, who was then Dearborn County Superior Court Judge.  Witte then became county attorney and used his position to ask that a couple Dearborn County politicians, who had supported his opponent in the primary, be prosecuted for Hatch Act violations.  The feds rejected Witte's efforts, deciding there were no Hatch Act violations in Dearborn County.  No word on what happened to the disciplinary grievance filed against Witte but you can bet with Witte assuming the helm it went nowhere.

It's time that the Indiana Supreme Court remove Witte from his position and appoint a new Executive Secretary who has a better temperament and who will refocus the efforts of the Commission on going after unethical attorneys whose conduct endangers the public.