Judge James W. Payne • Experience: Serving fourth six-year term as judge of the Marion County juvenile court. Becomes president-elect of the National Council of Juvenile and Family Court Judges in July. • The job: Payne oversees the juvenile court and detention facility, with an annual budget of $15 million. The court held more than 65,000 hearings in 2003. Payne, four magistrates and one commissioner hear delinquency and child welfare cases. • Notable: The juvenile court and Marion County now have a debt of nearly $55 million for housing juveniles in state-owned facilities. Rep. Robert W. Behning • Party/hometown: Republican of Indianapolis • Experience: Elected in 1992 to represent District 91, which includes parts of Hendricks, Marion and Morgan counties. Board member: Lutheran High School in Indianapolis, Decatur Township Civic Council, Mooresville Chamber of Commerce. • House committees: Commerce and Economic Development, Education, Public Health. Janice L. Stevens • Title: assistant public defender • Hired: May 1999, Marion County public defender's office. Formerly worked for the state public defender's office. Handles appeals for adult and juvenile defendants. • Notable: She filed her complaint against Payne in the fall of 2003. She has had two complaints filed against her, but neither complaint was found to have merit. About the commission The Indiana Commission on Judicial Qualifications is a seven-member panel of citizens, lawyers and the state's chief justice. • Mission: The panel investigates complaints against judges. If a complaint has merit, the panel may issue a warning or make the discipline public by asking the Supreme Court to discipline the judge, which can include removing the judge from the bench. • Numbers: The commission received 284 complaints last year, 234 of which were dismissed. The commission looked into 49 complaints, issued 20 "private cautions" or warnings and three public admonitions last year. One judge voluntarily resigned after a trial and a report to the Supreme Court that the commission had proven misconduct. Source: Meg Babcock, counsel to the commission

A complaint filed with the state alleges Marion County's juvenile court judge gave preferential treatment to an Indiana lawmaker, including special access to the court in a case involving the lawmaker's daughter.

The complaint, filed by Assistant Public Defender Janice L. Stevens, says Judge James Payne ordered an Indianapolis Police Department officer to go to the house of state Rep. Robert W. Behning, where the then-12-year-old girl was arrested on a theft charge. The next day, Payne held a hearing on the case on a court holiday without key court personnel present, including an attorney to represent the girl.

The girl then was sent to a secure juvenile treatment center on the theft charge -- her first criminal offense, according to the complaint. That decision would lead to three years of incarceration in various treatment programs costing taxpayers more than $48,000, the complaint alleges.

Stevens filed the complaint with the Commission on Judicial Qualifications, a Supreme Court ethics panel that looks into alleged judicial wrongdoing. The filing, normally not open to the public, was obtained by The Indianapolis Star.

Now 16, the girl is the adopted daughter of state Behning, a Republican who represents the 91st House District, which covers parts of Marion, Morgan and Hendricks counties. The juvenile, who is not being named by The Star because of her age, eventually was sent to a state Department of Correction facility, which released her last fall under an order from another court.

Payne and Behning insist they did nothing wrong and were working in the best interests of the child.

"I'm not going to talk about it. I'm not going to do anything to hurt this girl anymore by telling you some of the problems," Payne said. "To me, the commission needs to decide and is going to decide what, if anything, was inappropriate and make a decision on that. A complaint has been made, a response has been made, and they will make a decision."

Payne would not discuss details of the case at length, maintaining he could be violating judicial codes of conduct by doing so. He said his relationship with Behning was professional, not personal.

Locking up the girl was necessary, Behning said. "I think Jim (Payne) would do that for friends, but most people wouldn't have the access."

"She was a violent child. Insurance would not pay for it. Unless your child breaks the law, there's no access (to mental health treatment) for kids," he added.

Behning said his family got no special treatment other than access to the judge and court.

"If I'm going to take political hits for being a father and doing the best I can, so be it," Behning added. "Until you've been there, you just don't have a clue."

A key point in the complaint is whether the girl should have had an attorney. Stevens maintains the Behnings had a conflict of interest when they waived the girl's right to an attorney because they were the victims of her alleged theft.

Norman Lefstein, former dean of Indiana University School of Law-Indianapolis and chairman of the Indiana Public Defender Commission, said the U.S. Supreme Court has made it clear that juveniles have a right to an attorney. "It is not a right to be waived by the parents, especially when the parents are the complaining party," Lefstein said.

But outside legal experts also caution against drawing any conclusions based on a complaint.

Robert E. Rodes Jr., a professor of legal ethics at the University of Notre Dame, advised against jumping to conclusions after hearing only one side of the complaint against Payne.

"Ethics really is a matter of rules plus common-sense moral judgments," Rodes said. "I don't have enough of a scenario to weigh against the rules and see if he violated them."

Stevens, the assistant public defender, declined comment about her complaint, but said she became involved in the case when she heard about it at juvenile court.

The Commission on Judicial Qualifications is conducting an inquiry into Stevens' complaint. About one in every five complaints it receives reaches the inquiry stage. Meg Babcock, a lawyer for the commission, said the commission has never disciplined Payne.

Payne could face a range of punishments if he is found to have abused his power in the Behning case, ranging from what's called a "private caution," or warning, to removal from the bench.

Payne denies he sent IPD Juvenile Court Liaison Lt. Donald Breck Terheide to Behning's home on May 1, 2000, to arrest the girl. He maintains that he merely asked the officer to look into the matter. The girl was taken to the Juvenile Detention Facility that day and held.

Terheide, now assigned to IPD's Missing Persons Division, said he could not recall details about the case but said it would have been unusual for a judge to order a child's arrest on a criminal offense before any charges were filed.

Payne does not dispute that he held a hearing on May 2, 2000, a day the court was closed for the primary election. Access to the court is a key issue. It usually hears about 200 cases daily. Delays are routine -- cases set for 2 p.m. are often not actually heard until as late as 5 p.m.

The judge said opening the court on a scheduled day off is not unprecedented, although it's usually done to address issues such as jail-related crowding.

Besides providing no lawyer for the girl, there was no court reporter or prosecutor at the hearing, the complaint states. Payne tape-recorded the hearing himself. Records of juvenile court hearings are kept secret under Indiana law unless it is a felony case.

The complaint indicates Payne never stated for the record that he had talked to the girl's father about the theft allegations before her arrest. Behning called Payne a day before his daughter was taken into custody and told him about the theft and other misbehavior, including allegations that she had threatened her teacher, attacked her mother and threatened a classmate.

Four months earlier, her parents had taken the girl to visit Payne in court after other incidents, including writing a note threatening to kill a classmate. Police were not called at the time, Behning said, because "we were doing what we could to keep her out of the legal system."

Payne said such meetings are not uncommon, adding that the court tries to help parents who are struggling with their children so those children don't end up incarcerated.

When the 12-year-old girl returned in May, Payne used strong language to scold her, according to Stevens' complaint.

"I have a 1,000-member police department that will hunt you down and find you," Payne told the girl during the May hearing, according to the complaint.

In addition, Payne reportedly threatened to jail her friends. "Understand, clearly, I can control the conduct and behavior of anybody who comes in contact with you. . . . I can lock them up if they don't follow my rules."

Disclosure of the Stevens complaint comes after an official with the American Bar Association criticized Payne's court in December in a draft report for needlessly detaining children and providing no or inadequate legal representation for them. The report also noted that with caseloads of 800 or more, juvenile court public defense lawyers had no time to prepare for trials.

Public Defender David Cook declined comment on Stevens' complaint but said in an opinion article in last Sunday's Star that Marion County's juvenile justice system needs to be fixed. "The players in the juvenile justice system have abandoned their respective roles," he wrote.

Payne insists his opening of the court on a holiday was not done as a favor to the parents.

"There was a hearing because there was a delinquent charge filed," Payne said. "Is it a favor when a delinquent charge is filed and pursued?"

Payne, Behning said, acted as a "Dutch uncle." He said his daughter might have been treated differently than other children brought to court for theft, but it was done for the sake of his daughter, he said.

The girl was sent to the Institute in Basic Life Principles, a faith-based facility that operates the Indianapolis Training Center. The center is a secured residential treatment facility for juveniles in the 2800 block of North Meridian Street.

The complaint says the girl also was sent to Ladoga Academy in Ladoga, Ind., and other treatment and correctional facilities. She was released after 15 months in the fall of 2001 and returned home for three months before she was back in court. At that time, her parents said she took prescription drugs to school for another student to sell.

Again, without an attorney because her parents said she didn't need one, the girl was found in violation of probation on the theft charge and was sent to Lutherwood Residential Services in Indianapolis at a cost of $284 a day to taxpayers, according to the complaint.

The complaint notes the girl was at Lutherwood from Dec. 10, 2001, to April 17, 2002. She was at Ladoga, at a cost of $185 per day, from June 5 to Aug. 9, 2002.

The complaint says the county paid more than $48,000 for those two placements alone. During 2003, Marion County paid more than $2 million for care of children sent to Ladoga and Lutherwood.

Unless a court orders treatment, parents have to pay for it themselves, although a court can order parents to pay the costs. Behning said his family lives modestly and insurance would not cover the costs of the treatment programs.

In her complaint, Stevens said the teen had no legal representation until October 2002 when she learned about the case. "While representing (the girl), it came to my attention this was not an isolated incident," Stevens wrote.

Early last year, Superior Court Judge Dave Dreyer ordered the girl's immediate release after Stevens filed a motion. The girl now is in another facility, Behning said. She was taken there after she threatened herself and her mother. Marion County Sheriff's Department deputies were called for that incident.

Behning said Stevens' involvement in the case has hurt, not helped, his daughter. He said the release interfered with her treatment. After her release, the teen began having problems at home again.

"(Stevens') interest was not at all (my daughter's) best interest," Behning said. "Her interest was getting the thing overturned or going after Jim Payne. She truly did not have (my daughter's) best interest at heart and Jim Payne, I feel, did."

Stevens said she was ethically obligated to file the complaint against Payne. She said she first spoke to supervisors, colleagues and the public defender's ethics committee.

"I never even considered filing a complaint until after her case was done and she was locked up again," she said. "I'm not out to get Judge Payne."

Call Star reporter Vic Ryckaert at (317) 444-2750.

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