ACEB HEARING- DISMISS; OR PROCEED?

AND MOOTNESS
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and mootness

Gina Burgess

Yesterday at 8:34am ·

ROACH v ACEB—THE APPEAL: This matter is finally taking place this morning at 10 am I Judge Levine’s chambers. Well, sort of---the pending matter isn’t the Appeal, but rather a Motion to Dismiss the Appeal. For the record, I haven’t talked a lot about the remaining election Contestations because it puts a lot of added pressure on the litigants in those matters, especially the pro se Petitioners (i.e. the individuals that filed the Contestation). For the most part, I’m waiting for these Contestations to conclude before discussing their significance, in my opinion, as well as their outcomes. Roach v ACEB is not a Contestation, however, it is an appeal of an administrative hearing—specifically the February hearing held by the ACEB to discuss candidate challenges.

In that matter of Roach v ACEB---all I can say is wow, wow and WOOOW. (shaking head) First, Tim Pape as a member of the ACEB should have recused himself in all of Roach’s claims, but most especially those involving Mayor Henry. Why? Because Pape is the managing partner of the law firm of Carson Boxberger, that law firm contributes significantly to Henry’s campaign, and receives a significant share of the legal work regarding municipal contracts. There is simply no way that Pape could remain reasonably objective in this matter. With Pape not recusing himself, the entire process was tainted where Roach was concerned.

Second, during the February hearing on the Challenges raised against multiple Mayoral (4) and City Council At-Large (3) candidates---only one candidate lawyered up and that was Mayor Henry. Not only did he lawyer up, but he had two lawyers representing him.

Third, the ACEB changed their process without any advance notice---going from an investigative agency in the years leading up to and including 2014 (Kelty, 2007; Scheibenberger, 2010; Schrader, 2011; me, 2012; Haigh, 2014) and then suddenly in 2015 become a non-investigative/administrative agency. Not only that, but they shifted the burden of proof required from the Challengee (Schrader, 2011) back to the Challenger. (Now, in all fairness, I agree with the premise that the proof should be on the Challenger, but I don’t agree with changing policy and not advertising that policy change.) The ACEB activities get a lil hinkier in how they handle evidence---just this year alone!! In February, they required Roach, as the Challenger, to have physical evidence with him at a hearing. He had provided the ACEB with electronic evidence, but the ACEB rejected that. Because Roach “didn’t have” evidence, the ACEB rejected and dismissed all but one of his Challenges. In April, I filed a Complaint noting several candidate errors and omissions and told the ACEB that I would have evidence to present at a hearing. The ACEB denied me a hearing because I provided them with no pre-hearing evidence. Huh???

Fourth, at the February hearing—all parties were sworn in under oath, under penalties of perjury. In the matter of Roach v Kevin Brown---the ACEB never required Brown to address the CAN-12 irregularities that Roach was challenging. Those matters were completely ignored and then dismissed—for lack of evidence. Are you getting this---they ignored the matter completely, never even addressed it themselves, but yet they dismissed it for “lack of evidence”?? In the matter of Roach v Rick Stevenson—Roach raised the issue of Stevenson’s marriage, which Stevenson denied. The ACEB ruled that Stevenson’s sworn testimony under oath was all that was needed. But then the ACEB turned around and in Roach v Tommy Schrader---Roach presented verbal testimony as to Schrader’s name, Schrader never showed up to defend himself, and the ACEB had been involved in litigation in 2011 and either knew or should have known that Schrader’s legal name was Thomas and not Tommy. But they dismissed the matter for “lack of evidence”?? Perhaps the cream of the crop irony is in the matter of Roach v Tom Cook---Cook admits his business interests under oath. His CAN-12 form shows that he failed to list these business interests as the form requires. But the ACEB still dismisses the matter. Why?? Yep, “lack of evidence.” No offense, but has the ACEB collectively lost its mind?

And then there’s the matter of Roach v Mayor Henry --- Its unclear what Henry’s legal name is. Various sources show the Mayor’s name as either Thomas Charles or Thomas Christopher or my personal favorite---thanks to geneology sites like Ancestor.com, which rely on information obtained from libraries with geneology departments (our very own ACPL)---which lists the Mayor as Tc C Henry. Henry won’t produce a birth certificate despite being asked several times. No offense---it’s a birth certificate. What is the big deal?? Produce it and get it over with already. My guess is the Mayor has two middle names. Hey, he’s Catholic and was born in the 50’s when Catholic parents gave both a middle name and a “Christening” name. (To those born after the 50’s, that is now known as your Confirmation name.)

The bigger issue, to me anyways, is the CAN-12 form. The CAN-12 form is the Statement of Economic Interest in which the Mayor and his spouse are expected to lists all their income and business interests. When candidates run for office in one year, they have to list their income and business interests from the previous year—meaning 2015 candidates have to release information from 2014. In 2014, the Mayor’s wife owned and operated the Green Frog. And how do we know this?? Because in the middle of 2014, her family hosted a huge, well-publicized media bonanza celebrating her “retirement from the Green Frog” (of which the public was invited and many of you have Facebook pics of) and its transition to “new owners.” The ironic thing is---the Mayor’s wife still owns the real estate on which the Green Frog is located, so even though the business entity known as the Green Frog has been transferred---a different company owned by the Mayor’s wife collects rent payments from the Green Frog. The Mayor himself owns an insurance company, Gallant Group, and he failed to report that. (But to Mayor Henry’s credit, at least he remembered to list his income from being the Mayor of Fort Wayne---unlike nearly all of Fort Wayne City Council or the current Mayor of Woodburn. Oops?!!)

Putting aside all the above ACEB-related irregularities—its time to focus on the judicial procedural irregularities. And no folks, you just can’t make this stuff up. This matter was FINALLY scheduled for today, June 18th , but before it got to this point, there has been quite the flurry of pre-litigation activity.

This is an appeal of the Allen County Election Board’s decision of February 18th---a decision made and delayed for 4 months!! Judge Felts recused himself in the matter, meaning that Roach and the ACEB had to agree on an attorney. They couldn’t agree on one. So after Judge Felts order the Clerk of Court (twice…not once, but TWICE) to select a judge in the matter, she selected recently re-elected Judge Levine. (Bear in mind that the Clerk of Court is a member of the ACEB.)

The ACEB requested a Continuance. The Continuance was granted and the matter was scheduled for after the election on May 11. Then after the May 5th Primary, the ACEB moved to have the Appeal dismissed. Why? Because the elections were already had and the point of the appeals was moot. What?!?!? A person is on the ballot who flat out did not report all of their economic interests, may not have accurately reported their legal name, and the point is moot? I don’t think so. Not in the interest of true justice anyways.

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  Cathy J Cross How did that all work out?

  7 hrs · Like
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  Gina Burgess Cathy J Cross -- I wasn't able to attend and I haven't discussed the matter with David Christopher Roach yet, but my understanding is that he first tried to get Judge Levine to recuse himself. In my opinion, that was probably a good move because Roach's key opponent was Henry and Henry supported Levine. However, Roach waited until the last minute to try to disqualify the Judge and that's a move I don't understand. Judge Levine didn't recuse himself. Roach then tried to disqualify ACEB's attorney Carrie Hawk Gutman. And I have no idea why or on what grounds?? He was unsuccessful in that attempt as well. 
  
  Then the hearing proceeded to the ACEB's Motion to Dismiss. The original basis for the Motion was supposedly because the point was moot, the elections were held. My understanding is Roach tried to raise the argument that it was incorrect or wrong or unfair or ??? of the ACEB to do so because it was the ACEB who postponed the matter until after the election. ACEB/Judge Levine---not sure who??-- offered a counter argument that Roach could have responded to the Motion for Enlargement of Time that caused the delay and he failed to do so. (Ironically, in my opinion, even if Roach would have raised that issue, the Court would have still delayed the matter by way of a hearing on Roach's Motion objecting to the Requested Enlargement of Time---and then the delay would have been Roach's fault.) 
  
  At some point, the matter turned to ACEB's Motion to Dismiss. In addition to the premise that the point was moot, elections had been had, the ACEB raised the issue of how Roach didn't offer anything into evidence at the original hearing. And I don't really know or understand what happened at that point---what the argumets and counter-arguments to this issue were.Michelle Hill -- You attended this matter, Do you remember what the arguments and counter-arguments were to Roach's not presenting evidence at the original ACEB hearing? He presented evidence electronically and the ACEB rejected that evidence. Was that matter brought up? If so, how did the Court respond to that point? Also, prior to 2015, the ACEB's policy and procedures were that the burden of proof was on the party being challenged and not the challenging party. Was that brought up? If so, how did the Court respond to that issue?

  6 hrs · Like · 1
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  Michelle Hill There wasn't any discussion of how the ACEB's role at the February hearing had changed from an investigative role in 2011, into an administrative role in 2015. All that was mentioned was that he had sent the evidence via email and it was not accepted. Roach said that regardless of any evidence (that he had sent via email for the hearing but had presented with his appeal), one of his reasons for the challenge was to call to notice to the ACEB of the problems with the forms of those candidates. The judge focused on the fact that the challenge of only one of those candidates was not moot. And when Roach attempted to discuss that candidate, the judge started the whole concept of the fact that the matter was not his jurisdiction. Roach countered that comment with the question of "why are we in this court room if this is not your jurisdiction?" 
  Although he did mention the fact that the original schedule for a hearing on his appeal was going to be before the election, it was pushed past the election day. I really thought he should have continued to focus on that, but the judge only wanted to focus on the fact that Roach could have denied the ACEB's motion for continuance in an answer to their motion. And also that the challenge had to do with the primary election. Roach countered that the fact that since the candidate that was not moot had a defective CAN-42 -and a CAN-12 his remaining on the ballot would affect the General election.

  5 hrs · Like

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