St. Joseph judge who retired back on bench amid appointment stalemate

Retiring? Not so fast, Judge Jane Woodward Miller.

The Indiana Supreme Court on Monday issued an order appointing Miller, now a senior judge, back to the court she attempted to retire from last year.  The order authorizes Miller to serve as a St. Joseph Superior Court judge until May 1 as a fight over her potential successor plays out in another court.

Gov. Eric Holcomb has been blocked from appointing Miller’s successor due to a lawsuit brought by Joseph Grabill, a member of the St. Joseph Judicial Nominating Commission.

Grabill sued after a list of five finalists  to succeed Miller was sent to Holcomb in September. The finalists selected by the commission after interviews with the applicants are magistrate judges Andre Gammage and Elizabeth Hardtke; solo practitioner Jeffrey Kimball; Anderson Agostino & Keller attorney Stephanie Nemeth; and South Bend corporation counsel Stephanie Steele.

Grabill’s suit contends, among other things, that two members of the commission are legally ineligible to serve and, that the commission was politically biased against Republican candidates. The suit seeks to vacate the panel of candidates chosen to succeed Miller. The Republican Party was initially a plaintiff in Grabill’s suit, but Marshall Circuit Judge Curtis Palmer dismissed the local GOP for lack of standing before granting an injunction blocking Holcomb from making an appointment, finding evidence that one or two commission members may not have been legally eligible to serve.

The injunction will be in place “until a validly constituted Commission (or quorum thereof) submits a new list of five nominations to the Governor,” Palmer wrote in January, agreeing with Grabill that appointee David Anderson Hooker is ineligible to serve as a nonlawyer member, because he is licensed to practice in Georgia. The judge also gave Grabill time to show that member Charles Lahey “may be serving a second consecutive four year term in violation of statute.”

Holcomb, meanwhile, has argued in the case that under the “de facto officer” doctrine, he has the authority to act “although a later discovery may reveal that the legality of the person’s appointment may be deficient.”

Pending before Palmer are the commission’s motion to reconsider and motion to dissolve the injunction as well as Grabill’s motion for summary judgment. The case is Grabill et al. v. Holcomb et al., 50C01-2012-PL24.

The controversy comes as the Indiana General Assembly is considering legislation that would fundamentally change the method of judicial nominations in St. Joseph and Lake counties, reducing or removing attorney representation from those commissions. The Indiana State Bar Association on Wednesday formally opposed  that measure in the Statehouse, House Bill 1453. 

Miller has served on the St. Joseph bench since 2005.