COA reverses protective orders, remands classmates’ stalking case for judge’s improper comments

A pair of protective orders issued against two brothers by a classmate have been reversed after the Court of Appeals of Indiana determined the defendants weren’t given an impartial hearing and were denied due process by the Lawrence Circuit Court.

On Sept. 13, 2021, A.J., by next friend R.J., filed a petition for an order of protection against B.M. and his brother, R.M. The court held a hearing on both petitions on Sept. 24.

At the start of the hearing, Lawrence Circuit Judge Nathan Nikirk told the parties, “I’ll warn everybody before we get started, I am not in a good mood today. I was up all night dealing with a child abuse case, and I’m here this morning at 8:30 a.m. on this nonsense.”

A.J. testified that she was 17 years old and a junior in high school. She said she and B.M. had been in school together since middle school and that she had noticed his stalking activity back in sixth grade.

Once the students got to high school, A.J. testified that the stalking got worse, with B.M. driving his vehicle in circles around her while she was in her vehicle in the parking lot and waiting for her in the parking lot when she finished math tutoring after school.

A.J. provided other examples of alleged stalking, including B.M. sitting behind her in classes, smelling her hair and following her around the school.

When asked how she felt about being followed in her car, A.J. testified, “I’m scared, especially the way he looks. He looks like he wants to hurt me, like he wants to kill me, and he’d have pleasure in it.”

A.J.’s counsel called R.J., her father, as a witness. R.J.  was a conservation officer and, after an incident in which B.M. ran at A.J. at school, he went to B.M. and R.M.’s house, asked to speak with their parents, sat at their kitchen table and explained the daily stalking.

R.J. indicated B.M. did not deny anything, and B.M. and R.M.’s parents led him to believe they wanted to take care of it and it would stop. He stated he was in uniform and carrying a firearm but spoke to B.M. and R.M.’s parents as a father.

R.J. testified that, after an incident at a Denny’s restaurant, he went to B.M. and R.M.’s house a second time, was not in uniform and again spoke to their parents. B.M. and R.M.’s father said “my boys will be boys,” “[t]his is America” and “[y]our girl’s just going to have to get over it.”

Several improper exchanges happened when B.M. and R.M., and parent K.M., were questioned by the judge, according to court documents.

However, the protective orders were ultimately granted.

But after reviewing the transcript, the Court of Appeals reversed Friday, concluding the boys weren’t given an impartial trial. The COA determined B.M. and R.M. had made a prima facie showing that the trial court failed to preside over the hearing as a neutral, impartial decision-maker.

“When K.M. attempted to clarify that a question by A.J.’s counsel related to ninth grade, the court stated ‘[y]ou will sit there and shut your mouth’ or would be ‘out of here or across the street in the county jail,’” Judge Elaine Brown wrote for the appellate panel. “The court stated ‘I don’t care if he came with a bazooka.’

“The court took control of the hearing and called B.M. as a witness,” Brown continued. “After it heard testimony, the court stated: ‘Okay. I’ve heard enough. I’m ready to rule,’ ‘if I were this man and this was my daughter, it would have went a hell of a lot further than it did. Anyone called my daughter a whore, there’d be hell to pay for it from me,’ and ‘this pisses me off.’”

Brown wrote that that while the COA is “mindful of the pressures and stresses on trial courts,” judges “are expected to adhere to the Judicial Canons and treat litigants and their counsel with civility.”

Thus, the COA remanded for a new hearing before a different judicial officer and ordered that, pending the hearing, there be no contact between A.J. and B.M. and between A.J. and R.M.

Judge Melissa May concurred in result without a separate opinion.

The case is B.M. and R.M. v. A.J. by Child’s Next Friend, R.J., 21A-PO-2290.

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