UPDATE: The Johnson County Republican Party filed a motion requesting a special judge, which was approved. But a judge has not been named, which means that the candidate’s request for a temporary restraining order to halt the caucus has not been approved.
The party plans to conduct a caucus at 6:30 p.m. tonight.
A candidate for prosecutor is asking a judge to stop the caucus set for tonight on the grounds that he was wrongly disqualified earlier this month and not given any due process to challenge that disqualification.
In his temporary restraining order and request for declaratory judgment filed against the Johnson County Republican Party, prosecutor candidate James Ackermann is 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, not allowing him to present a case for why he was eligible, or appeal its decision.
"The prejudice of failure to follow this basic procedure is stunning and egregious and has left Plaintiff with no other remedy other than to file this action," the lawsuit says.
Ackermann has said he was reluctant to take legal action, but had given the Johnson County Republican Party leadership and its attorney every opportunity and ample time to correct its legally flawed decision to disqualify him as a candidate during the first scheduled caucus earlier this month.
Early Thursday morning, Ackermann filed a temporary restraining order, or injunction, in Johnson County, asking the courts to prohibit the party from conducting a caucus to name a prosecutor tonight. He also filed a request for declaratory judgment, asking the court to find that he was the only eligible candidate on Aug. 15 and that he should have been named prosecutor that night.
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 that none of the six candidates had filed the forms that were needed to be eligible candidates. He was the only candidate who had.
In the days following the Aug. 15 scheduled caucus, it was learned that Ackermann had filed the declaration of candidacy form with Boyce — not once, but twice. The form was filled out and signed by Ackermann prior to July 17, which is when the vacancy officially began, which is why he was disqualified, county Republican Party attorney Bill Barrett has said. Barrett has not provided any legal explanation for that requirement despite Ackermann asking for an explanation for nearly 10 days, the lawsuit says.
Ackermann’s legal filings were assigned to Johnson Superior Court 4 early Thursday morning.
The Johnson County Republican Party filed a motion requesting a special judge, and Superior Court 4 Judge Marla Clark approved the motion, recusing herself from the matter. All the Johnson County judges are Republicans and therefore members of the local Republican Party, creating a conflict of interest. What judge has been or will be named was not clear by 2 p.m. Thursday. The status of the caucus scheduled for tonight was also unclear, but the Republican Party had announced no plans to postpone the event.
State law says that both parties have seven days to agree on a special judge to consider the matter, or that both parties can agree that a special judge can be appointed by the Johnson County court administrator. Without conducting a hearing, a judge can issue a temporary restraining order that would halt the caucus for up to 10 days. Indiana trial rules say that action can be taken if "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition."
Then, a hearing must be scheduled as soon as possible.
But on Thursday, the Republican Party filed a motion requesting a hearing on the temporary restraining order. The party also filed a motion requesting the lawsuit be dismissed.
The lawsuit specifically asks that a judge halt the caucus until the suit can be resolved, or rule that Ackermann was a valid candidate on the date of the first caucus and should be legally recognized as such.
The caucus cannot proceed tonight as scheduled without risk, the lawsuit said.
"Should this caucus go forward, there is a possibility that a candidate who has not properly qualified for the position be sworn into office, which would result in further legal action and jeopardize all manner of civil and criminal matters which the Office of the Prosecuting Attorney for Johnson County, Indiana executes on a daily basis."
The potential harm this could cause to the public, and to Ackermann, is extreme, the suit says.
Ackermann was told by Boyce three times the night of the first caucus that if the date on his candidacy form had been correct, he would have been sworn in as prosecutor that night, the lawsuit said.
The date the one-page form is filled out and signed 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.
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 lawsuit states, in part, "The disregard of the CAN-1 (candidacy challenge) filing and said procedure resulting in the summary disqualification without notice, chance to be heard and review by a neutral body violates not only the laws of Indiana but further of the very basic and fundamental concept of due process. Plaintiff has exhaustively sought to resolve this matter short of this action but has been constantly rebuffed by the Defendant."
The other five candidates did not submit a form at all, and Boyce canceled the event shortly after it was set to begin, sending the precinct committee members and candidates home with instructions to return in two weeks.
The decision to disqualify Ackermann due to the date on his form was necessary because having a prosecutor with a taint of ineligibility is untenable, Barrett said in the days following the first scheduled caucus.
"If one of those decisions errs on the side of caution, that’s far better than having a prosecutor whose legitimacy is subject to question," Barrett said.
Citing the importance of the job of prosecutor, Barrett said the party "would rather have a mistake in process than a mistake in outcome.”
Ackermann said it is a case of the party and its attorney inserting its own requirements that aren’t supported by state law.
Ackermann had hoped that 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 on Thursday morning. He is represented by attorney Bryan Cook of Carmel.
Ackermann has said that when he became interested in the job of prosecutor, his goal was to work hard for the office and get involved with the local party as a volunteer. He never planned or desired to have to take legal action against the party, but has told the public and the precinct committee members that, as prosecutor, he would fight for what was right.
The Johnson County Republican Party central committee, led by Boyce, did not raise the issue of whether candidates had filed the declaration of candidacy form until faced with a lawsuit by Carrie Miles, one of two candidates who had been told after the filing deadline that she had not met the requirements to be a candidate because she did not file a statement of economic interest, which is also a requirement of the law for prosecutor candidates. Miles began researching and raised the question of the candidacy form, which is what led to the party canceling the caucus.
Ackermann was the only candidate of six who had filed both forms.
According to public records available from caucuses conducted since 2017, the party has been using the candidacy declaration form during dozens of caucuses in recent years, although none of the paperwork is in compliance with state law.
After any caucus is conducted, the party chairperson is required by law to file with the county clerk a state form certifying that a caucus was conducted and who was selected. The Republican Party has filed this form, labeled a CEB-4, 16 times since 2017 for caucuses conducted for vacancies on city and town councils, the Franklin mayor, township advisory boards, township trustee and clerk-treasurer seats.
The form states the party is attesting that the person selected in the caucus is a registered voter in the proper area, complies with all requirements to be a candidate, "and consents to this appointment by the declaration of candidacy (CEB-5 form), which was timely filed in accordance with Indiana Code 3-13-11-7, and is incorporated by reference in this certificate."
The law says the candidacy forms must be filed at least 72 hours before the caucus, and when the party leader signs the results certificate, he or she is certifying that the candidacy forms were filed by that deadline.
Attached to the result certificates filed in the courthouse are the CEB-5 candidacy forms filled out by all candidates in each caucus. A review of those records shows that many of the candidacy forms through the years are incomplete, not dated, or not notarized or signed by a public official as required.
In 15 of the most recent 16 caucuses, all the candidates for all the positions signed and dated their candidacy forms the day of the caucus, which is a violation of the law that requires they are filed by the 72-hour deadline, according to a review of the public records.
That means that none of the candidates placed in local office by a caucus in recent years have complied with the state law that the party cited as a reason to disqualify prosecutor candidates.
That also means that the party chairperson routinely has signed a form certifying that the candidacy forms were filed by deadline, even though the attached candidacy forms show they were not.
"Once there was a hint, we realized there had been a problem with our process, that’s when we decided we could not move forward," Boyce said in the days after the Aug. 15 event.
Ackermann was the only candidate who had filed his declaration on the proper form.
The prosecutor job became open when former prosecutor Brad Cooper was removed from office on July 17 when he was sentenced on felony convictions. Six candidates initially sought to complete the remainder of his term through the end of 2022. They were: Ackermann, Miles, Beckie St. John, Lori Torres, Mike Vertesch and Joe Villanueva.
Five candidates are seeking the seat in the caucus do-over scheduled for tonight. Vertesch decided not to re-apply.
Ackermann, a Greenwood resident, is a Hendricks County deputy prosecutor after a long career in Marion County.