Rush on Review: Chief Justice’s Own Words Raise a Question Her Court May Soon Have to Answer

If Rush Refuses to Step Down, The Rest of the Court Must Act to Remove Her as Chief Justice and Step Up to Address the Long Term Damage, Starting With a Damage Assessment Similar to One the Hoosier Enquirer Has Conducted and Begin an Investigation into Johnson and Witte at the Indiana Supreme Court Attorney Discplinary Commission, Who Abused Their State Positions.

INDIANAPOLIS — Indiana Chief Justice Loretta Rush recently sat down for a wide-ranging interview on The Probable Cause, a program filmed at Allen Superior Court with host Jamie Duffy and guest co-host Tesa Helge. Among the subjects she discussed was one of the most basic features of the American judicial system: the ability to appeal, review and correct decisions.

Beginning at roughly the 5:09 mark, Rush turns to the role of appellate review. Her point is familiar to lawyers and judges alike. Trial courts make decisions, but appellate courts exist so those decisions can be tested. Legal conclusions can be reviewed, factual and procedural errors can be identified and, when necessary, corrected.

That is an ordinary description of how a functioning judiciary is supposed to work. It becomes more interesting, however, when considered alongside a disciplinary case decided under Rush’s leadership nearly nine years ago: In re Doug Bernacchi.

A new sworn affidavit from Mario Sims now directly challenges a factual proposition that appeared in the Indiana Supreme Court’s 2017 disciplinary opinion. The question is not whether Rush’s interview decides the Bernacchi matter. It plainly does not. The more difficult question is whether the principle she describes — meaningful review when serious questions arise — should apply with equal force when the judgment under scrutiny is one entered by the Supreme Court itself.

Why Review Exists

Appellate review is not an insult to a trial judge, nor is reconsideration necessarily an accusation against the original decision-maker. Courts recognize that decisions made carefully and in good faith can still be wrong.

Indiana’s judicial system reflects that principle every day. Trial-court rulings can be appealed to the Court of Appeals, and some of those cases are later presented to the Supreme Court through petitions to transfer. The justices review the lower-court decision, the record and the parties’ arguments before deciding whether additional scrutiny is warranted.

Rush herself has sometimes voted for further review when other justices have not. That is not unusual. It is part of appellate judging. A request for another look is not proof that anyone acted improperly; it is recognition that consequential decisions become more reliable when they can be examined.

That principle may now become relevant in a much older and more unusual case.

The Witness Indiana Never Heard

Hoosier Enquirer has obtained the Sept. 3, 2026 sworn and notarized affidavit of Mario Sims, a central figure in the Bernacchi disciplinary proceeding.

The affidavit directly conflicts with language appearing in the Indiana Supreme Court’s 2017 opinion. The Court said Bernacchi had “dissuaded the Commission from deposing Sims.” That proposition formed part of the Court’s explanation for why hearing officer Sheila M. Moss properly prevented Sims from testifying during the December 2016 sanctions hearing.

Sims now says under oath that Bernacchi did not dissuade him at all.

He says he was willing to be deposed, wanted to testify and understood Bernacchi to want his testimony. He repeatedly states that Bernacchi neither pressured nor encouraged him to avoid the Disciplinary Commission. Most significantly, Sims says it was then-Commission attorney Aaron Johnson who told him to leave while Bernacchi was demanding that Sims provide testimony.

That is not simply Bernacchi complaining about what happened to him. He's been patient and retrained himself as a Licensed Optician and Real Estate Agent. Clearly the adult in the room. We should note that one of the men pictured above, the skinny one on the left, recused himself from ruling on Bernacchi's future back in 2017. But he clearly had no real conflict of interest at all, making that curious in a case of injustice that keeps getting curiouser and cursiour to Indiana lawyers.

But it is the witness, Mario Sims, himself challenging what the judicial record says happened to the witness. His name ironically appears all over the final court order. Why is that? As Sims, said when interviewed, "if they had a problem with me why attack Doug? I provided legal research to judges and many other lawyers who contracted me as an employee who was not housed in their offices, but only one was destroyed publicly, and based on complete false facts and even perjury."

Sims Was Not Discovered Nine Years Later

That distinction matters.

Sims was involved in the underlying representation. According to the record and Bernacchi’s account of the December 2016 proceeding, Sims was available during the sanctions hearing and Bernacchi attempted to call him after Sharon Brown Perry testified for the Commission.

Moss refused to permit Sims to testify. The Supreme Court later upheld that decision, in part because of its conclusion that Bernacchi had discouraged the Commission from deposing Sims. Now the person supposedly discouraged says it never happened.

Sims’s affidavit also raises other factual questions. He says Perry never paid him or his wife legal fees for Bernacchi, placing his firsthand recollection in tension with another aspect of the disciplinary case involving alleged fee sharing. He also gives a detailed account of the Perry representation, including the initial telephone call, electronic filing, Perry’s expected court appearance and work performed by Sims’s paralegal business.

Not every statement in the affidavit carries the same evidentiary weight. Sims offers opinions about political targeting and broader conclusions about the proceeding. Those are different from his firsthand statements about whether he was willing to testify, whether he received money and what he says Johnson personally told him.

Those firsthand assertions can be tested.

Review Should Not Stop at the Supreme Court’s Door

There is nothing inconsistent about a Supreme Court reviewing the decisions of lower courts while also valuing the finality of its own judgments. Finality is important. But it is not absolute.

Indiana’s Supreme Court has recognized extraordinary circumstances in which an old judgment can be examined again. In Stonger v. Stonger, the Court recognized inherent judicial authority involving fraud upon the court and explained that the power may be exercised sua sponte — on the court’s own initiative — and is not governed by an ordinary fixed limitations period.

That doctrine is narrow. Sims’s affidavit alone does not establish fraud upon the court, nor does it establish wrongdoing by Commission officials merely because Bernacchi alleges it.

The significance of Stonger is more basic. Indiana law does not require a court to ignore potentially consequential evidence simply because an earlier judgment has become old. Courts retain authority to protect the integrity of their own proceedings.

That principle matters here because the affidavit does not merely offer a different interpretation of the same old evidence. It presents new sworn testimony from the very person the Court discussed when explaining why he did not testify.

Reopening Is Not the Same as Reversing

Rush’s comments about review are useful because review and reversal are not the same thing.

A court can review a decision and affirm it.

The Indiana Supreme Court could take the same approach with Bernacchi. It could reopen the disciplinary docket for the limited purpose of examining Sims’s affidavit, request responses from Bernacchi and the Disciplinary Commission, obtain the December 2016 transcript and review records concerning efforts to depose Sims.

A hearing officer, or perhaps a panel, could determine whether Sims was willing to cooperate, whether Bernacchi discouraged him, whether Johnson told Sims to leave and what the Commission and hearing officer understood about Sims’s availability. The Court could also examine why Sims was not permitted to provide rebuttal testimony after Perry testified and whether objective records support or contradict disputed evidence concerning financial harm.

After that review, the Court might decide that nothing warrants changing its 2017 judgment.

If so, the judgment would stand on a stronger foundation because the new evidence had been heard and tested.

If the evidence showed something different, the Court would then have a developed record upon which to determine what corrective action, if any, was appropriate.

That too would be review.

Rokita Shows the Court Can Be Flexible

The Supreme Court recently demonstrated considerable procedural flexibility in another controversial disciplinary matter involving Indiana Attorney General Theodore Rokita.

In 2025, the Court approved a three-member hearing panel rather than using a single hearing officer. It explained that Rule 23 permits “hearing officer or hearing officers” and recognized that a multi-member panel could reduce concerns that political influence might affect the proceeding. Justice Christopher Goff separately emphasized that such a structure could strengthen confidence in the disciplinary system.

The factual and legal issues in Rokita’s case were different from Bernacchi’s, and the Rokita decision gives Bernacchi no automatic right to the same outcome.

What it demonstrates is institutional capacity.

When the Court believes additional safeguards can strengthen confidence in attorney discipline, it knows how to create them.

A three-member panel could serve a similar function here without prejudging the merits.

New Evidence Is Different From Another Appeal

Bernacchi has challenged his discipline before, and any new effort to obtain relief will undoubtedly encounter arguments about finality. Courts are not required to entertain endless attempts to reargue evidence that has already been considered.

But Sims’s Sept. 3 affidavit presents a different problem.

It is not simply another brief interpreting the old record. It is sworn testimony from the individual the Supreme Court itself discussed when explaining an important evidentiary ruling.

The Court said Bernacchi dissuaded Sims.

Sims says Bernacchi did not.

That difference is factual, not ideological.

Someone is mistaken.

Rush’s Own Words Offer a Useful Standard

Rush’s comments beginning around 5:09 in The Probable Cause interview are worth hearing in full rather than reducing them to a political sound bite.

Her broader point about appellate review reflects an important feature of American courts: consequential decisions should have meaningful mechanisms for scrutiny.

That principle is easy to defend when a higher court reviews someone else’s decision. Its real value is tested when an institution confronts a serious question about its own work.

The Indiana Supreme Court does not have to concede that its 2017 decision was wrong. It does not have to accept Sims’s affidavit as conclusive, and it certainly does not need to accept every allegation Bernacchi has made about former Commission personnel.

It can do something much simpler.

It can review.

In Our Next Article, HE Will Publish the Evidence The Affidavit In The Future.

Today, Hoosier Enquirer will examine in a second story Sims’s Affidavit, the circumstances surrounding his exclusion from the 2016 hearing and the Indiana authorities giving courts extraordinary power to revisit judgments when the integrity of the process is genuinely in question.

The story will also examine why a limited evidentiary proceeding — not automatic reversal — may offer the most credible path forward.

Rush has spent much of her judicial career working within an appellate system built around review. Her recent interview offers a timely reminder of why review exists.

Sometimes another set of eyes finds that the first decision was right. Sometimes it finds an error. But when genuinely new evidence directly contradicts an important factual proposition in a judicial opinion, refusing even to look is not review at all.

For the Bernacchi case, the immediate question is therefore not whether the Indiana Supreme Court should reverse itself.

It is whether, consistent with the principles of appellate review Rush herself describes, the Court should finally hear Mario Sims. Afterall that is what she claims she advocates, ironically.