A Shelby County judge has decided to throw out a lawsuit by a former Johnson County prosecutor candidate, saying he should have taken his grievances up with the state Republican Party, not the courts.
The lawsuit filed by former prosecutor candidate James Ackermann against the county Republican Party is uncharted territory, said David Riggins, Shelby County Superior Court 2 judge.
“It’s a really interesting issue, and honestly, I’ve thought a lot about it,” Riggins said before the hearing Friday in his Shelby County courtroom. “There’s been no case exactly like this, ever.”
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Click here to purchase photos from this galleryAckermann filed the lawsuit the day of the second scheduled caucus, alleging he was wrongly disqualified during the first scheduled caucus to replace the county’s prosecutor in August, and was not given any due process to challenge that decision.
The Republican Party immediately filed a motion to dismiss the lawsuit, saying the court “has no jurisdiction to decide a purely political question.” The motion to dismiss also said that just because state law outlines the caucus procedures, that does not extend to the courts having jurisdiction to hear a complaint that the party didn’t follow its own rules.
Riggins denied that motion on Friday, saying the courts do have jurisdiction.
Ackermann was the only candidate who had completed two forms required by state law to be a candidate for prosecutor, yet party chairwoman Beth Boyce told the more than 100 precinct committee members gathered at the first caucus on Aug. 15 that none of the six candidates for the job had filed the forms that were needed to be eligible candidates.
In the days following the first scheduled caucus, it was learned that Ackermann had filed the declaration of candidacy form with Boyce. The form was filled out and signed by Ackermann prior to July 17, when the vacancy officially occurred, which is why he was disqualified, county Republican Party attorney Bill Barrett has said.
Former Johnson County prosecutor Brad Cooper was removed from office in July after he was convicted of felonies, including criminal confinement, and misdemeanor domestic battery.
Ackermann filed the lawsuit on Aug. 29, the day of the second scheduled caucus, and the county Republican Party filed a motion requesting a special judge. All the Johnson County judges are Republicans and therefore members of the local Republican Party, creating a conflict of interest.
The Republican Party also asked for a hearing to be conducted on the request for a restraining order. A special judge was not named that day, meaning Ackermann’s request for a restraining order to halt the caucus had not been ruled on, and the caucus proceeded.
Ackermann participated in the caucus, earning one precinct committee member vote, and prosecutor Joe Villanueva, who had been serving the position in the interim, was appointed.
“Rightly or wrongly, (Ackermann) was unable to persuade them. He now seeks the selection by other means. Indiana courts prefer to have matters decided on the merits, and it seems to this court that the caucus vote is very akin to a decision on the merits,” Riggins said in his ruling.
“To the extent that Mr. Ackermann feels this decision is unfair, this court completely understands such feeling. However, the selection was a political decision and politics can at times be quite messy. The machinations of political activity are sometimes compared to making sausage, and the first step in making sausage is to shoot the hog. Mr. Ackermann is probably feeling a bit like that hog.”
Ackermann’s lawsuit specifically asked that a judge halt the caucus until the suit could be resolved, or rule that he was a valid candidate on the date of the first caucus and should be legally recognized as such.
Because the caucus was allowed to proceed, an additional problem had been created, the lawsuit said. But Judge Riggins would not get into that issue during Friday’s hearing, saying by exploring the issue, he would be saying the courts do indeed have jurisdiction over the matter, which he had not yet decided.
Despite arguments from both sides regarding what happened leading up to and on the day of the party’s second scheduled caucus, Riggins wanted to focus solely on whether the issue is justiciable, or subject to a trial in a court of law.
The party argued it is not.
In the end, Riggins decided the courts do have jurisdiction, but would not exercise that jurisdiction in this matter due to Ackermann’s desire to be selected by the county’s Republican Party, not elected by the voting public, according to the ruling.
“Mr. Ackermann was not a candidate for election, he was qualified to be selected. He has no statutory or constitutional right to be the prosecutor,” the ruling said.
“Frankly, whatever I rule is subject to appeal,” Riggins said during the hearing.
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Ackermann’s attorney, Bryan Cook of Carmel, referred to party leaders and their attorney as “shot callers,” claiming that the county Republican Party had someone in mind who they wanted to lead the prosecutor’s office, and it was not Ackermann.
“Generally, the rule of law matters, so I’ve been scratching my head trying to figure out what does the law mean?” Cook said.
“(Ackermann) is left wondering how this happened. He’s the one who dotted his i’s and crossed his t’s — he’s the only one who had his ducks in a row.”
Ackermann was told by Boyce three times the night of the first scheduled caucus that if the date on his candidacy form had been correct, he would have been sworn in as prosecutor that night, the lawsuit alleged.
The date that a candidate must sign the candidacy form is not outlined in state law, has never been litigated and flies in the face of the way the party leaders have conducted caucuses for years, county documents revealed.
Further, the party did not disqualify Ackermann using any due process or paperwork, such as the state form that the party or public uses to challenge a candidate’s eligibility for office or to appear on a ballot.
The other five candidates did not submit a form at all, and Boyce canceled the event shortly after it was set to begin on Aug. 15, sending the precinct committee members and candidates home with instructions to return in two weeks.
“No vote was held because a few powerful people didn’t want it to be,” Cook said.
If a vote had been held that first night, there is no way of knowing for sure Ackermann would have been appointed prosecutor as precinct committee members are not required to vote, Riggins said.
There’s also the issue of those precinct committee members not wanting Ackermann to be prosecutor.
“Mr. Ackermann, I don’t mean this as a slight to you; I don’t know you, so please do not take offense to this … they didn’t want him,” Riggins said, pointing at Ackermann. “They had a chance to vote and they didn’t want him.”
Still, throwing out the lawsuit is like saying party leaders can make up the rules as they go along, Cook said during the hearing.
In his request for a temporary restraining order and declaratory judgment, Ackermann was asking a judge to find that he was the only eligible candidate at the Aug. 15 caucus. The Republican Party did not afford him any due process in challenging his candidacy by not allowing him to present a case for why he was eligible, or appeal its decision.
But in order to claim due process, Ackermann would have to have some sort of liberty or property interest, neither of which he had in this case, Riggins said.
Barrett said a party chair has the inherent ability under the law to craft a remedy that works, and that is what Boyce did in this case.
But, he also argued that it doesn’t matter if the party didn’t follow it’s own rules — that’s not the issue. The courts are bound by a previous case.
Barrett and Riggins cited a previous court ruling in another county that determined that regardless of the laws outlining how a caucus is conducted, it is still up to the political party to ensure it enforces those rules.
Only the state committee of the political party can ask the courts to enforce the rules, the Republican Party’s motion to dismiss the lawsuit said.
The appointment of a new prosecutor is the decision of the members of the party, the enforcement of the procedural caucus rules outlined in state law are up to the party, and that an individual does not have the right to enforce party rules, the motion said.
The motion outlines other reasons Ackermann’s lawsuit lacked merit. They include:
His initial candidacy form was not signed after the vacancy occurred and did not certify that he is a resident of Johnson County;
The precinct committee members are not required to vote at a caucus, so it cannot be proven that he would have been selected as prosecutor;
Public interest in the matter, and the right of the party members to freely and fairly cast ballots.
“Politics is a messy business,” Barrett said, arguing that is why the state has given political parties the power to make decisions on its own.
“The state, for over a century, has uniformly and routinely held that courts can’t address these issues,” he said. “This is a political process. It is up to the party.”
Barrett also argued Ackermann waited until the last minute to file an injunction, which is why the party disregarded it.
“He chose the remedy he wanted to see and the timing he wanted to do it,” Barrett said.
Ackermann said at the time he was reluctant to take legal action, but had given the Republican Party leadership and its attorney every opportunity and ample time to correct what he believes to be a legally flawed decision to disqualify him as a candidate during the first scheduled caucus.
Ackermann had hoped the party would re-evaluate its decision and correct its error, and he gave the leaders nearly two weeks to acknowledge that their decision was not supported in the law, and that he was not given any type of due process to challenge it.
When that didn’t happen, he resorted to filing the injunction.
Barrett repeatedly argued that politics is a messy business. Political parties don’t follow “ascertainable rules or laws,” so even if the matter were to be reviewed in court, what remedy could be given, he asked the judge.
Cook said he understood Barrett’s and the judge’s argument that the case should be dismissed because it lacked justiciability. But in this case, the party’s decisions during the scheduled caucuses were so far askew that they made the rules up as they went along, and that deserves to be addressed, he said.
“When it’s this far askew, questions need to be answered in court,” Cook said.
Cook said not acknowledging these issues undermines the public’s confidence, which had already been undermined due to Cooper’s actions prior to the caucus.
“The party didn’t want (Ackermann) to have a remedy. They don’t want him to have a remedy today; they didn’t want him to have a remedy at the time; they don’t want him to have a remedy ever,” Cook said.
“He is entitled to this. He should have his day in court. This should be reviewed.”
He went as far as to argue that Ackermann is entitled to the office of Johnson County prosecutor.
Ackermann, a Greenwood resident, is a Hendricks County deputy prosecutor.
