The Journal Gazette, 600 W. Main St., Fort Wayne IN

Can a judge who has a pending drunken-driving case preside over other cases involving alcohol-related offenses? Should a judge accused of speaking derogatorily about a man he believed sold his late son drugs continue to handle cases involving accused drug dealers?

With two local judges making news in recent weeks, facing those exact allegations, some in the community might be asking those exact questions.

While other professions might have ethical questions or potential conflicts of interest handled by specific boards or commissions, when it is a judge, the decision about what is a conflict of interest rests solely with the individual judge.

In the past month, Allen Superior Court Judge Kenneth R. Scheibenberger and Allen Circuit Court Judge Thomas J. Felts made headlines for allegations of professional misconduct and drunken driving, respectively.

The Indiana Commission on Judicial Qualifications filed formal charges with the Indiana Supreme Court on July 15 against Scheibenberger, accusing him of violating the rules of judicial conduct when he got into a verbal altercation with the family of a criminal defendant in another courtroom last November.

Scheibenberger believed the man, who was being sentenced to prison for a weapons violation by Allen Superior Court Judge Fran Gull, sold drugs to his son, Sam. Sam Scheibenberger died last August.

Still wearing his robes after leaving a hearing in his own courtroom, Scheibenberger called the defendant a “piece of shit” to his parents seated nearby, according to court documents.

Scheibenberger handles many of Allen County’s low-level felony cases, many of which involve illegal drugs.

Days after Scheibenberger was charged, Felts, 53, was arrested in the early-morning hours of July 18 in downtown Indianapolis after being pulled over by Capitol Police for failing to use his turn signal. According to court documents, Felts’ eyes were glassy, his speech was slurred, and he admitted to drinking. He was arrested and charged with operating a motor vehicle while intoxicated and public intoxication.

Felts, the sole Circuit Court judge, handles both civil and criminal cases. The majority of the criminal cases he handles involve alcohol.

Both Felts and Scheibenberger declined to comment for this story.

Although the Indiana Supreme Court Disciplinary Commission monitors how lawyers behave under the Indiana Rules of Professional Conduct, it is the Indiana Judicial Canons that govern the behavior of those who wear the robes.

According to Don Lundberg, executive secretary for the Supreme Court Disciplinary Commission, any allegations of misbehavior by a judge are solely the purview of the Indiana Commission on Judicial Qualifications.

That commission investigates allegations of impropriety or misbehavior, and a panel of judges hears evidence and determines whether a judge committed misconduct. Any disciplinary action is handled by the Indiana Supreme Court. The discipline could include a public reprimand or suspension from office.

The judicial canons are clear. Canon 2 says “a judge shall avoid impropriety and the appearance of impropriety in all the judge’s activities.”

But it is up to that judge to decide whether he or she has a conflict of interest, Gull said.

And much like criminal defendants have a presumption of innocence, judges are presumed neutral.

“That is a difficult presumption to overcome,” she said, adding judges are trained not to allow the cases that come before them and the decisions they have to make to become personal.

Judges have a wealth of guidance provided in the canons and through written opinions and commentaries on the rules offered by the commission and the Supreme Court, she said.

Gull stepped away from a case in 2007 after it was learned her son, then an Army recruiter, was involved in the case. He had recruited a woman who had a pending felony case. The woman’s attorney told the court that Gull’s son told the recruit the charges were dropped.

In 1995, the state Supreme Court made a ruling designed to prevent “judge shopping,” which involved attorneys, often prosecutors, filing cases in the court where they felt the judge would be the most sympathetic.

As head of Allen County’s criminal judges, Gull decides who handles a particular criminal case when a judge determines a conflict has arisen.

And if necessary, under Allen County’s court rules, that can include any judge who handles criminal cases, be it the lone Circuit Court judge or the other Superior Court criminal judges.

Since his arrest, Felts has handled domestic-relations cases that move through Circuit Court, with a court magistrate handling the felony alcohol-related cases. But under Allen County court rules, the Circuit Court judge must sign all orders issued by a magistrate.

Although Felts might not be handling the cases, he is reviewing them.

Gull said the Allen County system of assigning cases to the two courts, such as putting all felony DWI cases in Circuit Court, does not need revisiting.

The judges and magistrates have collegial relationships and can trade off with each other if necessary with the other judge’s consent, including from Circuit Court to Superior Court. There are no turf battles, Gull said.

“It’s not broken,” she said. “Why fix it?”

rgreen@jg.net