A Sworn Witness Now Contradicts a Key Finding in the Bernacchi Discipline Case. Can Indiana Reopen It?

Indiana Chief Justice Loretta Rush should provide her travel log.

INDIANAPOLIS —  The October 16, 2017 order was for “not less than one year, without automatic reinstatement,” effective November 27, 2017.

Nearly nine years after In Re Doug Bernacchi, Bernacchi remains suspended. 1 year has turned into 9 years when it only states "not less one year without automatic reinstatement." The Indiana Supreme Court under Loretta Rush suspended 27 year attorney Doug Bernacchi, who ran once for U.S. Congress and decades later for Circuit Court Judge as a Republican in 2016 in St. Joseph County against John Broden as a former member of the Senate Judicial Committee was clearly friendly in the past with Chief Justice Rush.

Broden and Rush had prior institutional connections. Both graduated from Indiana University’s law school in Bloomington—Rush in 1983 and Broden in 1990—and archival video from a State of the Judiciary address shows then-Sen. Broden serving in an official legislative role escorting Chief Justice Rush to the House chamber. Those facts establish prior professional contact, although they do not by themselves establish that the relationship affected the Bernacchi disciplinary proceeding.

But this September, a signed and notarized affidavit from Mario Sims obtained by HE has reopened a question that has never fully gone away: what should happen when a witness at the center of a disciplinary case later swears that a factual premise used by the court was wrong?

He is a key witness never deposed or allowed to testify by the state for some reason. Sims says he was never deposed and was not permitted by the state, not by Bernacchi, to testify at the sanctions hearing. The published opinion confirms his exclusion but attributes it to Bernacchi’s alleged conduct and some technical witness-list issue.

Regardless, witness not list should be called under due process rights as rebuttal witness, and Moss erred in instructing him to limit his testimony to matters of rebuttal only, and insteaded excluded him even after making sit in court all along having order the witnesses not separated when Johnson said he did not understand what separating the witness was about.

Yes, he was that incompetent accusing a 27 year trial lawyer and form Town Attorney of Michiana Shores who defeated the EPA case against the Indiana town as incompetent. It was truly a case of the pot calling the kettle black from our investigation and reporting to date, which has been extensive on Johnson, Rush, Witte, and several Attorney Discipline court abuse cases in Indiana.

Until now, he was afraid to voluntarily provide an affidavit but Hoosier Enquirer has it, and it is clear that the Indiana Supreme Court under Chief Justice Loretta Rush erred. Go figure.

The issue is narrower than Bernacchi’s broader complaints about the disciplinary process, but potentially more consequential. Sims is not merely offering a retrospective opinion about whether the 2017 outcome was fair. In a six-page affidavit signed Sept. 3, 2026, he directly contradicts a factual proposition that appears in the Indiana Supreme Court’s published opinion, and he does so as the person whose own conduct was being described.

The 2017 opinion said hearing officer Sheila M. Moss properly excluded Sims from testifying because Bernacchi had “dissuaded the Commission from deposing Sims” and had not included him on the final witness list. The opinion also acknowledged that Bernacchi attempted to use Sims at the Dec. 19, 2016 sanctions hearing to challenge the credibility of Sharon Brown Perry, the Commission’s principal witness.

Sims now confirms under oath that Bernacchi never discouraged him from testifying or being deposed. He says he was willing to testify, that Bernacchi wanted him to testify and that Disciplinary Commission attorney Aaron Johnson told him to leave.

That creates a direct conflict between the published disciplinary narrative and the sworn account of the witness himself.

A Witness Who Says He Wanted to Testify

The strongest portions of Sims’s affidavit are paragraphs 5 through 14, where he repeatedly addresses the circumstances surrounding his absence from the proceeding. He says Bernacchi never pressured him not to testify, never encouraged him to avoid a deposition and never asked him to withhold truthful information from the Commission.

Sims also says he was willing to be deposed and willing to appear at the final hearing. His affidavit does not leave the issue to implication. He approaches the same point several ways, saying Bernacchi neither caused nor encouraged his non-participation and that Sims understood Bernacchi to want his testimony.

Most significantly, Sims says Johnson—not Bernacchi—told him to leave while Bernacchi was demanding that Sims provide testimony.

The distinction matters because this is not primarily testimony about someone else’s motive. Sims is describing what he says happened to him personally.

In paragraph 14, he also draws a line around what he does not know. Sims acknowledges that he cannot testify about private communications between Bernacchi and the Disciplinary Commission that took place outside his presence.

That limitation may actually strengthen the affidavit because it shows that he is distinguishing between matters within his personal knowledge and matters he cannot independently verify.

He Was There, But He Was Never Heard

The circumstances of the December 2016 hearing make Sims’s new account more important.

By then, the proceeding had been converted into a hearing on sanction rather than a full trial on liability. Moss presided. According to Bernacchi’s account of the hearing record, Sims was present and had not initially been separated or barred as a witness.

Perry then testified for the Commission, including testimony Bernacchi says concerned the loss of a home she shared with her grandson. Bernacchi contends that testimony was materially false and that public property records in Kalamazoo County contradict the account.

After Perry testified, Bernacchi sought to use Sims in rebuttal. Moss refused to allow him to testify.

That sequence deserves careful examination because the Supreme Court later justified Sims’s exclusion in part by saying Bernacchi had dissuaded the Commission from deposing him. Sims now says that did not happen.

If the transcript confirms that Sims was present, available and not otherwise disqualified at the outset, then the dispute is more complicated than a simple witness-list problem.

The question becomes whether a witness with firsthand knowledge was prevented from responding to testimony offered at a sanctions hearing, and whether the explanation later given for excluding him rested on a factual premise that the witness himself now disputes under oath.

Another Conflict Over the Flow of Money

The sworn affidavit of Mario Sims, obtained by HE, raises a second factual issue in paragraph 25. Sims says Sharon Perry never paid him or his wife legal fees for Bernacchi and therefore, in his view, Bernacchi could not have split Perry’s legal fees with him.

The 2017 opinion included improper fee sharing among the violations found by the Court. That does not mean Sims’s affidavit automatically disproves the finding. The original Verified Complaint, Amended Verified Complaint, payment records, deposition testimony and other evidence would still need to be compared carefully.

But Sims’s statement is not merely character evidence. He is describing whether he personally received money.

That is capable of verification through financial and billing records.

A Detailed Account That Can Be Tested

Paragraphs 15 through 24 of the affidavit provide a more detailed alternative account of the Perry representation. Sims describes the initial phone call, the urgency surrounding the matter, use of the Quest electronic filing system, preparation of an appearance, communications concerning Perry’s attendance at court, her alleged failure to appear, the eventual change in the appearance and a $35 paralegal charge.

Those details matter because they are testable. Emails, docket entries, electronic filing records, billing records and contemporaneous communications can either corroborate or contradict them.

That makes the affidavit more significant than one containing only a generalized assertion that the process was unfair.

At the same time, not every portion of the affidavit carries equal evidentiary weight. Sims also expresses broader views about political targeting, alleged perjury, Perry’s motives and people he considered hostile to Bernacchi. Those assertions are opinions or inferences and should be treated differently from his firsthand account of whether he was willing to testify and who told him to leave.

Attorney Discipline Still Requires Due Process or Does it in Indiana?

Maybe that is why smart people don’t seek today to practice law in this state.

The broader legal question, regardless, is whether an old disciplinary judgment can be revisited when serious new evidence appears.

The United States Supreme Court has long held that attorney discipline is subject to procedural due process. In In re Ruffalo, the Court reversed a disbarment after finding that the lawyer had not received fair notice of the charge against him before testimony was taken.

The decision treated attorney discipline as an adversarial, quasi-criminal proceeding in which procedural fairness matters.

That principle does not mean every disputed evidentiary ruling justifies reopening a case years later. It does mean that attorney discipline is not exempt from ordinary constitutional concerns merely because it is administrative or professional in character.

Indiana’s own rules make the point in another way. Admission and Discipline Rule 23 says the disciplinary system exists not only to protect the public and the courts from lawyer misconduct, but also to protect attorneys from unwarranted claims of misconduct.

That second purpose is easy to overlook, but it matters here.

A disciplinary system must be capable both of imposing sanctions when misconduct is proved and of confronting evidence that a material finding may have been wrong.

Indiana Recognizes Sua Sponte Authority in Extraordinary Cases

The most important Indiana case may be Stonger v. Stonger, a 2002 Indiana Supreme Court decision involving fraud upon the court.

Stonger was not an attorney-discipline case, but its discussion of judicial authority is significant. The Court recognized an inherent power to set aside a judgment when fraud upon the court has occurred. It also said that this authority does not necessarily depend upon a motion filed by a party, may be exercised sua sponte, and is not governed by a fixed limitations period.

The standard is intentionally demanding. Stonger emphasized that fraud upon the court involves egregious conduct capable of improperly influencing the judicial process and preventing a party from fully and fairly presenting a case.

Sims’s affidavit, by itself, does not establish that such fraud occurred in Bernacchi’s case. It does, however, raise the kind of factual question that could justify further inquiry before the Court decides whether the extraordinary standard has been met.

The Court’s opinion says Bernacchi dissuaded Sims from being deposed. Sims now says he did not. The opinion relied on Sims’s absence. Sims says he was willing to testify. Bernacchi says he attempted to call him, while Sims says Johnson told him to leave.

The threshold question is therefore simple: how did the proposition appearing in the Court’s opinion enter the record, and was it accurate

Sua Sponte Review Would Not Mean Immediate Exoneration

Reopening the matter would not require the Indiana Supreme Court to vacate the 2017 judgment immediately or to decide that any lawyer, hearing officer or Commission official acted improperly.

The Court could take a much narrower approach.

It could order responses to Sims’s sworn affidavit, reopen the disciplinary docket for limited factual development, appoint a hearing officer or panel, allow Sims to testify under oath and permit examination of the records surrounding his attempted deposition and appearance at the sanctions hearing.

It could also review Perry’s testimony alongside objective property records, examine the payment evidence and consider the circumstances surrounding the admissions relied upon in the original disciplinary opinion.

After developing that record, the Court could conclude that nothing warrants changing the 2017 judgment.

Or it could conclude otherwise.

The point of reopening would be to determine the facts, not to presume the answer.

Indiana Has Revisited Discipline Before

Indiana disciplinary history also shows that finality is not absolute when serious procedural concerns arise.

In Matter of Watson, the Supreme Court learned after imposing a suspension that counsel had not been served with the hearing officer’s findings. The Court stayed the suspension, gave counsel an opportunity to seek review and made clear that the earlier disciplinary order would not control if reconsideration became necessary.

That was not a fraud case. It was a fairness case.

Its significance lies in the institutional response: when the Court learned that an attorney may not have had a meaningful opportunity to participate at an important stage of a disciplinary proceeding, it did not treat finality as the end of the inquiry.

Rokita and the Court’s Willingness to Adapt Procedure

A more recent example comes from the disciplinary proceedings involving Indiana Attorney General Theodore Rokita.

In 2025, the Indiana Supreme Court agreed to use a three-member hearing panel rather than a single hearing officer. The panel was not contrary to Rule 23; the Court explained that the rule permits “hearing officer or hearing officers.” But the reason for the accommodation was significant.

The Court recognized that a multiple-member panel could help reduce concerns about political influence or public perceptions surrounding a controversial disciplinary case. Justice Christopher Goff separately emphasized that such a structure could reinforce confidence in the integrity and independence of the disciplinary system.

The Rokita proceeding was later dismissed as moot after a joint request from Rokita and the Commission.

Those facts do not mean Bernacchi is entitled to the same procedural outcome or the same result. Different cases can properly be treated differently.

But the Rokita matter establishes something important about institutional flexibility: when the Supreme Court believes unusual procedures are warranted to protect confidence in the disciplinary process, it has demonstrated that it is willing to use them.

That principle could apply here.

A Three-Member Panel Could Make Sense

If the Court were to reopen Bernacchi’s case, a three-member panel similar to the Rokita arrangement could provide one way to address concerns about independence and credibility.

The issues now involve testimony about former Commission personnel, a hearing officer’s evidentiary ruling, statements made by Perry, Sims’s exclusion and factual language that ultimately appeared in the Supreme Court’s own opinion.

A panel could determine whether Sims was willing to be deposed, whether Bernacchi discouraged him, who told Sims to leave, whether Sims was present and available in December 2016 and what the Commission knew about his willingness to testify.

It could also review the payment evidence, Perry’s statements regarding damages and any objective records bearing on those claims.

That would not require the Court to prejudge anyone’s credibility. It would create a record on which credibility could actually be evaluated.

The Perry Testimony Should Be Examined Against Records

Bernacchi maintains that Perry testified at the sanctions hearing that she lost the home she shared with her grandson because of him and that Kalamazoo County property records show that claim could not have been true.

That assertion cannot be accepted merely because Bernacchi makes it.

The records should be examined.

If they support Perry, that should be acknowledged. If they materially contradict her testimony, the question becomes whether the testimony affected the sanction and whether the Commission knew or should have known about the discrepancy.

The same approach should apply to Bernacchi’s claims about earlier disciplinary negotiations and the circumstances surrounding his admissions. Those claims should be tested against the agreements, transcripts and contemporaneous correspondence.

But the Sims issue is distinct.

Even if the admissions remain part of the record, the Court separately relied upon an explanation for Sims’s absence that Sims now denies.

Finality Matters, but So Does Accuracy

Nine years is a long time.

Courts properly value finality because evidence becomes more difficult to locate, memories fade and parties must eventually be able to rely on judgments.

But finality has never been the only value in the justice system.

Accuracy matters. Due process matters. The integrity of judicial proceedings matters.

Stonger is important precisely because it recognizes that in extraordinary circumstances, those values may outweigh ordinary concerns about repose. Its discussion of inherent authority, sua sponte review and the absence of a fixed time limit reflects the judiciary’s responsibility to protect the integrity of its own judgments.

Whether Bernacchi’s case reaches that level remains to be determined.

Sims’s affidavit provides a reason to ask.

The Court Does Not Have to Choose Sides Yet

The Indiana Supreme Court does not need to begin by deciding that Bernacchi was wronged.

It does not need to decide that Sims is correct.

It does not need to accuse Johnson of misconduct, Perry of perjury or Moss of intentionally denying a fair hearing.

It needs only to recognize that a factual proposition in its own published opinion is now directly challenged under oath by the witness at the center of that proposition.

That can be investigated.

Sims can testify.

The Commission can challenge him.

The transcript can be examined.

Records can be produced.

The parties can explain what happened.

The Court can then decide whether anything about the 2017 judgment should change.

That process would protect all sides. It would protect Bernacchi if the new evidence proves significant. It would protect the Commission if the evidence does not. And it would protect the judiciary by showing that confidence in final judgments does not require pretending they are incapable of error.

An Opportunity to Restore Confidence

Attorney discipline depends on institutional trust. Indiana lawyers live in fear, and that is wrong. Gov. Mike Braun has failed to address their concerns. But then what Republican ever tries the get the support of lawyers?

The public must trust that lawyers who violate professional obligations will be disciplined. Lawyers must also trust that the same system will protect them against unwarranted charges, as Rule 23 expressly contemplates.

That trust is strengthened when institutions are willing to examine credible new evidence, not weakened by it.

The Rokita proceedings showed that the Indiana Supreme Court understands the importance of public confidence and procedural legitimacy. The Court was willing to adopt an unusual structure when it believed doing so would enhance confidence in the process.

The Bernacchi matter presents a different set of facts, but the same institutional principle.

A sworn witness now says that an important factual premise in a published disciplinary decision was wrong.

That is not a reason to declare Bernacchi innocent.

It is a reason to investigate.

Indiana Should Hear Mario Sims

If a reopened evidentiary record establishes misconduct by Commission personnel, the Court should determine what accountability and corrective relief follow. The Indiana Supreme Court’s opinion says Bernacchi dissuaded the Disciplinary Commission from deposing Mario Sims.

Mario Sims now swears that Bernacchi did not. Bernacchi fired his lawyer who caused him to waive his rights to a trial on the merits. He was told he would never practice law again if he sought a hearing on the merits. Well he did what was required, and he hasn't practice law again anyway. This in not justice, it is injustice.

Furthermore, under oath Sims says he was willing to be deposed always, wanted to testify and understood Bernacchi to want his testimony, which is not what the Supreme Court found in error. He also says Aaron Johnson told him to leave the deposition room. And when Bernacchi, through his new lawyer Thomas F. Godfrey, III, attempted to call Sims as witness at the December 2016 sanctions hearing, Sims was never permitted to testify. Judge Moss said she had heard enough to rule and was leaving for her Holiday break, ordering the filings of proposed finds from the parties due in the new year (2017). She did not rule until June 2017, and then the Supreme Court took until October 16, 2017 to issue an order, ordering the closing of a 27 year law practice in 2 weeks. Reciprocal displinary cases were yet another saga of absolute absurdity and miscarriages of justice.

Regardless of the delay, the conflicting propositions cannot all comfortably coexist without examination.

A newspaper cannot resolve that factual conflict, and neither can rhetoric. The Indiana Supreme Court can and must.

The most convincing way for a disciplinary system to restore confidence is not to insist that old judgments are immune from scrutiny. It is to demonstrate that the institution has enough confidence in itself to examine credible new evidence when it appears.

The Court does not have to presume that Doug Bernacchi was wronged. It does not have to presume that Mario Sims is right.

It only has to determine what happened, and Wiite, Johnson or others engaged in prosecutorial misconduct and obstruction of justice, they should be held accountable.