ILNews

Court weighs needs when timing judicial suspensions

Back to TopCommentsE-mailPrintBookmark and Share

When deciding that a judge must be suspended and determining when that time off the bench should be, decision-makers must maintain a delicate balance.

On one hand, the Indiana Supreme Court must make sure that the jurist who has done wrong is held accountable for the misconduct committed. But the justices also must ensure that a local court isn’t put at a disadvantage when its presiding judge steps aside.
 

Younr William E Young

The start of a recent 30-day suspension for Marion Superior Traffic Judge William Young came about three months after the Indiana Supreme Court ordered that sanction, a period the state’s chief justice says is longer than what’s typically seen but was necessary to make sure the high-volume traffic court didn’t hit any operational speed bumps.

An analysis of the appellate judicial discipline docket during the past decade shows six suspensions out of the 20 judicial discipline sanctions handed down since 2000. The rest have been reprimands, resignations, or permanent removal from the bench. But of those six, Judge Young’s case represents the longest gap imposed by the court between suspension order and start date.

But does that delay really matter?

Those in the legal community most involved in the disciplinary process say it’s an interesting balance, but they aren’t sure it does matter much as long as the sanction is carried out as ordered.

With attorney disciplinary actions where suspensions are imposed, court spokeswoman Kathryn Dolan said a customary four-to-five week delay exists between when the court orders a suspension and when it actually starts. The reason is that justices want to make sure clients have adequate time to learn about the upcoming suspension and the lawyer can prepare for that time away, Dolan said.

Similar trends aren’t evident in judicial suspensions, but she said the appellate clerk’s office speaks with local court administrators about any particularly disruptive periods for a suspension and what might be needed as far as a temporary judge.

“The goal is to make sure disputes are resolved and justice isn’t delayed,” Dolan said.

Past disciplinary dockets show that the court typically lets a month or so pass between the time the order is issued and suspension start date, and most often they give a jurist at least a few weeks to know specifically when his or her suspension will begin. Each one is case-specific.


McGoff Kevin McGoff

“From the respondent judge’s perspective, there isn’t really any ability to influence the timing of when the Supreme Court might issue an order or specify when a suspension begins,” said Indianapolis attorney Kevin McGoff, who defends both attorneys and judges accused of misconduct. “That period tends to run its course the same as any litigation that culminates with an order and sanction, and you can’t predict it.”

McGoff said once a judge and the Judicial Qualifications Commission reach a conditional agreement, his work as defense counsel is finished and he isn’t privy to any discussion the parties may have from then on.

By Admission and Discipline Rule 25 VIII(B)3, proposed settlements are confidential and agreements submitted for approval only become public when the Supreme Court accepts those in whole or in part and issues an order or opinion on a case, according to Dolan. The parties can enter into an agreement at any point prior to the court’s final resolution of a case, and justices can accept or reject a settlement and return it to the commission for further action.

From past experience, McGoff knows that the court has stepped in and decided that proposed settlements weren’t adequate, but no trend on how often that happens or when it might happen comes to his mind.

“I’ve never really kept score, but it does happen from time to time,” he said. “We often receive a letter from the clerk’s office saying it wasn’t accepted, and maybe the court offers some guidance on how to proceed.”

On the attorney side, former disciplinary commission executive secretary Don Lundberg said both sides are typically looking for a mutually beneficial agreement.

“They’re looking for a goldilocks solution,” he said. “Neither party is interested in an agreement that’s destined to fail. They are always submitted in good faith, but you never know how a court may view it.”

He said during his time as executive secretary between 1991 and 2010, the court occasionally notified parties that a settlement wasn’t acceptable.

“I’m not sure what interpretation you can take from those turndowns, except that they didn’t fit what the court viewed was necessary,” Lundberg said.

Fort Wayne attorney James Fenton, who’s defended a handful of judges on misconduct cases through the years, says the cases he has handled have been resolved with settlement agreements. Without getting into specifics of his cases, Fenton said he’s always observed that the parties imposing the discipline have worked to minimize disruption to the local court as much as possible. The state has attempted to make sure that a suspension start date balanced with the ability of the individual court to continue functioning, he said.

Marion Superior Judge Grant Hawkins, who was given a 60-day unpaid suspension in March 2009, said his suspension began immediately upon the court’s order but his situation was different because that sanction followed an automatic procedural paid leave period that started in November 2008. Before the holidays, the court named judge-elect James Osborn as the judge pro temp to fill in for Judge Hawkins and allowed a commissioner to help him out.

The court had found Judge Hawkins committed misconduct by allowing delays in post-conviction relief proceedings. In one case, the delays resulted in a wrongfully convicted man being kept in prison almost two years after DNA cleared him of a crime. While Judge Hawkins was suspended for a combined five months between paid and unpaid leave, the judge’s former commissioner, Nancy Broyles, who was in charge of the case, resigned in response to the disciplinary action and the court permanently banned her from the bench.

Judge Young couldn’t be reached to comment on the timing of his suspension before it began Feb. 22, but the docket shows the three-month gap included the holiday period and also a move in Traffic Court location in January. There’s no indication based on public information whether that factored into the timing of the court’s announcements.

The Indiana Supreme Court issued an official decision Feb. 14 on In The Matter of William E. Young, No. 49S00-1007-JD-374, a procedural step after the court ordered the month-long penalty on Nov. 23, 2010, when the judge and Indiana Commission on Judicial Qualifications reached a settlement.

The Indiana Commission on Judicial Qualifications formally charged Judge Young with misconduct based on allegations that he engaged in a practice of “imposing substantially higher penalties against traffic court litigants who chose to have trials and lost,” and that Judge Young “routinely made statements implying that litigants should not demand trials and would be penalized for doing so if they lost.”

Court records show that Judge Young “exhibited impatience” during trial by citing the time and his “full afternoon” docket when talking to one litigant about a plea agreement. He told her, “I don’t know if I want to take your plea. I’d rather just go to trial, I think. I don’t like being jerked around at all, all right?” The woman was sentenced to a year in county jail and her driving privileges were suspended for an additional 365 days. The Indiana Supreme Court reversed that conviction in June 2010 and ordered a new trial, pointing specifically to Judge Young’s behavior that violated three judicial conduct canons requiring impartiality, patience, unbiased behavior, and recusal if a judge’s impartiality might be questioned.

Citing that case in its suspension order, the Supreme Court recognized that Judge Young has not been previously disciplined and that he cooperated with the commission during its investigation and prosecution. The court also noted that the judge admitted that most of his conduct violated the judicial code and he is committed to changing his behavior.

The court cited two judicial disciplinary decisions from the past two years – Matter of Koethe, 922 N.E. 2d 613, 616 (Ind. 2010), and Matter of Hawkins, 902 N.E. 2d 231, 246 (Ind. 2009) – to point out that even reprimands create a “significant blemish on a sitting judge’s reputation.”

Aside from the unpaid suspension, the court also ordered Judge Young to pay any costs of this proceeding as part of his penalty.

Chief Justice Randall T. Shepard concurred in result, but wrote, “I would expect that in the absence of a settlement, this case should have resulted in a lengthier suspension. The per curiam understates the willfulness of the Respondent’s conduct and the damage it has done to the public standing of the judiciary. Fortunately, the overwhelming number of Indiana’s judicial officers strive demonstrably toward a much higher standard. Still, as in other litigation settings, there is much to be said for the benefits of settlement, so I have joined in approving the agreement tendered by the parties.”

Indianapolis attorney Paul Ogden, who handled a lawsuit against Judge Young and his Traffic Court conduct, found the 30-day suspension inadequate but consistent with past sanctions in other cases.

“I’m not sure the reason for the delay, but I was expecting a lengthy, detailed opinion to provide guidance to other judges in the state,” he said, noting that the holidays may have factored into the delay. “I was surprised that the opinion really didn’t go much further than the original preliminary decision.”

Ultimately, Ogden doesn’t think the three-month delay has much impact. More important was the opinion rationale and penalty imposed, and particularly the chief justice’s concurrence.

“While I agreed with the opinion, I liked that Chief Justice Shepard thinks a longer period of suspension is appropriate in these types of cases,” he said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

ADVERTISEMENT