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‘Notre Dame 88’ lawyer cleared in discipline case

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An attorney who argued that a judge’s bias warranted her recusal from a case involving pro-life students arrested for protesting the announcement of President Barack Obama’s appearance at the University of Notre Dame was cleared of disciplinary charges Tuesday.

The Indiana Supreme Court’s ruling in In the Matter of: Thomas M. Dixon, 71S00-1104-DI-196, held that Thomas Dixon’s arguments for recusal “are relevant to, and indeed required for, the relief sought.”

Dixon represented more than 80 people arrested on the South Bend campus in 2009 who objected to the announcement that Obama would speak at Notre Dame and receive an honorary degree. The collective defendants came to be known as “the Notre Dame 88” and the charges against them ultimately were dropped.

But before that, their consolidated trespass case was assigned to St. Joseph Superior Judge Jenny Pitts Manier, whose husband is a retired Notre Dame professor who Dixon noted in his petition for recusal had advocated for pro-choice causes. Dixon also noted a prior ruling by Manier against a pro-life protester that was reversed on appeal.   

The Disciplinary Commission focused on four statements Dixon made in court filings that it said violated the rule regarding attorney speech, Rule 8.2(a). The rule states, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

“The Court concludes that none of the statements at issue, which (Dixon) made in support of his Motion for Change of Judge, violated Indiana Professional Conduct Rule 8.2(a), considering the entire context in which the statements were made, including Respondent’s supporting facts. We therefore enter judgment in favor of Respondent,” four justices wrote in a per curiam opinion.

Just three of the statements made by Dixon were considered by the court. They were:

  • Judge Manier’s inability to separate the college’s mission from her husband’s professional mission “calls into profound question her ability to navigate the waters of defendants’ legal defenses”;
  • That in applying an injunction in a prior ruling, Manier either didn’t understand Indiana Trial Rule 65 “or she did not feel duty bound to apply the rule because she was biased in favor of the abortuary”; and
  • That in refusing to allow a party Dixon represented to intervene in a case, the ruling “demonstrates to me that she was willing to ignore the applicable legal standards in order to move the case in a direction that negatively affected (his client’s) legal rights.”

Justice Robert Rucker dissented and would have sanctioned the statements. “I agree with the hearing officer that Respondent’s ‘comments went beyond legal argument, they became personal, and violate current professional standards.’”

Manier filed the grievance against Dixon and ultimately recused herself from the case, according to the record.
 


 

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  • NYT v Sullivan would have been better for us but...
    Carlos, I too like the subjective test better since we are talking about ethics here and ethics should take the actual thought process into account. However it does simplify the job of the court and it obviously contemplates that there are going to be a lot more beefs against lawyers in the future and they're prolly taking the opportunity to make their job easier. I read the decision and I assumed that the prosecutor has a to make a case that it was objectively unreasonable. I mean they cant seriously think they just allege remarks are unreasonable and then not introduce any evidence to support it and pass it to the defendant to try and rebut. I cant imagine that. But then again what do I know, the whole trend of punishing lawyer free speech has surprised me for the two decades time it has been accelerating
  • Next Question
    What this decision seems to be left unsaid, however, is whether the Comm'n bears the burden of showing whether the atty lacked the "objectively reasonable basis for making the statement" or whether the atty bears the burden of showing whether he HAD the "objectively reasonable basis for making the statement." I'd think it's the former but am not 100% sure since the Comm'n can't peer into the atty's mind and determine what said "reasonable basis" may have been.
    • good outcome
      Absolutely right decision. Dixon's motion was sound and effective advocacy and his assertions were backed by facts. it turns out truth is a defense I guess. Now the complaint against the other lawyer involved should be dismissed. What they did was excellent advocacy and by standing up and defending themselves they have defended all of us too. In the future judges should think twice before going after lawyers like this and consider if the outcome wont prove the point; ie, kind of like yanking the proverbial evidentiary harpoon in and out of the wound again and again.
    • Congrats to Tom Dixon
      Indiana attorneys owe Tom Dixon a debt of gratitude for standing up to a system bent on ending zealous advocacy and silencing dissent. This victory should be a banner story here, but it is not, likely due to pressure from the losing statists.

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    1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

    2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

    3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

    4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

    5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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