Court examines 'judge' definition

Jennifer Nelson
January 1, 2007
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The Indiana Appeals Court today upheld the convictions and sentence of man who sent threatening letters to the Marion County Prosecutors Office, a judge, and commissioner after being ordered to have no contact.

To be clear in its decision, the appellate court delved into the definition of "judge" and determined the term does include a county commissioner who handles legal matters for the court.

In Allen Montgomery v. State of Indiana, No. 49A04-0703-CR-188, Montgomery appealed his two Class D felony convictions for intimidation and 11 Class A misdemeanor convictions for invasion of privacy. Montgomery was convicted of impersonating a public servant and was placed on probation. As a part of the probation, he was ordered to not have any contact with the Marion County Prosecutor's Office unless it was to report a crime.

A week after he was placed on probation, Montgomery went before Master Commissioner Nancy Broyles regarding an alleged probation violation on a separate incident. Marion Superior Judge Grant Hawkins appointed Commissioner Broyles and assigned her duties, including hearing jury trials.

Commissioner Broyles revoked Montgomery's probation and ordered him to serve four years in the Indiana Department of Correction. From there, Montgomery sent letters to the prosecutor's office, none of which reported crimes. He also sent a letter to Commissioner Broyles saying he found her home address online and he hated to see something happen to her. Montgomery sent a letter to Judge Hawkins, telling him protecting Commissioner Broyles would be "an exercise in futility."

Montgomery was convicted of intimidation and invasion of privacy; he was also deemed a habitual offender. His intimidation charges were amended to Class D felonies because of his threats to a judge. He was sentenced to an aggregate term of 7 1/2 years, which included an enhancement of 4 1/2 years for being a habitual offender.

On appeal, Montgomery argued his Class D conviction for threatening a judge was in error because Commissioner Broyles is not a judge as is defined by the code that defines intimidation.

But the court disagreed, with Judge Nancy Vaidik writing that Commissioner Broyles was appointed by a Superior Court judge to hear and decide legal matters in the court - how a judge is defined in Black's Law Dictionary. Therefore, sufficient evidence exists to support the Class D felony convictions, she wrote.

Montgomery believed his convictions for invasion of privacy also violated his state and federal constitutional rights, but Montgomery never raised on appeal the issue that the no-contact order with the prosecutor's office put a restraint on his "politically expressive speech." The appellate court did not address this issue because Montgomery didn't attempt to appeal that issue at the time it was imposed.

As far as Montgomery's sentence, the appellate court found the trial court was well within statutory rights to enhance his sentence for being a habitual offender, and given the nature of his offenses and his character, his sentence was appropriate.

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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.