Indiana Attorney General Curtis Hill is continuing his fight to have his lawyer discipline case dismissed, writing in a brief to the Indiana Supreme Court that if he must be sanctioned, it should be no more than a reprimand. Hill is also drawing on the recent discipline of three Indiana judges involved in a downtown Indianapolis shooting to argue that the recommended discipline against him is unfair.
Hill on Monday filed for Supreme Court review of former Indiana Supreme Court Justice Myra Selby’s recommendation that he serve a 60-day suspension without automatic reinstatement for committing misdemeanor battery against four women: Rep. Mara Candelaria Reardon and current and former legislative staffers Gabrielle McLemore Brock, Niki DaSilva and Samantha Lozano.
Selby filed her hearing officer’s report Feb. 14, roughly four months after presiding over a four-day evidentiary hearing in the case of In the Matter of: Curtis T. Hill, Jr., 19S-DI-156. The Indiana Supreme Court Disciplinary Commission had sought a two-year suspension without automatic reinstatement.
Hill’s brief seeking the justices’ review tracks with the arguments he has been making since the disciplinary case was opened in March 2019. He did not violate Indiana Rules of Professional Conduct 8.4(b) and (d), he argues, because he did not commit battery, his conduct was not related to the practice of law and he did not prejudice the administration of justice.
At this point in the proceedings, Hill argued the commission did not prove the violations, and Selby did not make findings and conclusions to support them.
“The context in which the alleged conduct occurred is important,” Donald Lundberg, Hill’s counsel and the former head of the Disciplinary Commission, wrote. That context was the March 2018 sine die party where the four women say Hill drunkenly groped them. “It was not in a courtroom. It was not in a courthouse. It was not in a law office. No judge was present.”
Hill argued the commission failed to prove, and Selby failed to find his act of “touching” the four women was done in knowingly rude, insolent or angry manner, a key element of a battery claim. “It is insufficient that a third person believes the touching is rude, insolent, or angry,” he wrote.
Hill conceded a criminal conviction is not required to find a violation of Rule 8.4(b). But, he continued, no “other lawyer discipline cases support a conclusion that on the facts of this case, where the conduct was disconnected from the practice of law, has the Commission pursued Rule 8.4(b) violations in disregard of the considered decisions of a duly authorized prosecutor.”
What’s more, under a Rule 8.4(b) analysis, Hill and Lundberg argued that Hill’s role as a “law enforcement lawyer” should not be considered. They relied on Matter of Oliver, 943 N.E.2d 1237 (Ind. 1986), where a part-time special prosecutor got into an accident while driving while intoxicated.
“In its discussion … the Court gave no consideration to the fact that the respondent was a law enforcement lawyer,” the brief says. “Instead, it looked to the nature of the criminal conduct (operating a vehicle while intoxicated) and held that the respondent’s act of driving while intoxicated was not a violation … .”
That no-violation finding in Oliver came about because the prosecutor’s criminal conduct did not relate to his fitness to practice law, Hill argued. “Here,” he continued, “the Hearing Officer did not make any finding that the conduct at issue displayed a lack of honesty or trustworthiness, and it is not supported by the record that the Respondent’s conduct at the sine die party was dishonest or lacked trustworthiness,” thus defeating a Rule 8.4(b) violation.
Further, in a footnote, Hill says the Indiana Supreme Court “has never held in any case that the Attorney General … is akin to a prosecutor for purposes of the Oliver doctrine.”
On the issue of Rule 8.4(d), conduct prejudicial to the administration of justice, Hill said there is only one way his conduct could be a violation: “because, like a prosecutor, it fosters disrespect for the criminal law when a law enforcement lawyer violates the criminal law.
“We discussed above why the Respondent’s conduct did not satisfy the elements of the crime of battery and why the Commission failed to prove that he knowingly or intentionally touched any of the four women in a rude, insolent, or angry manner. For that reason, the Respondent did not violate Rule 8.4(d).”
On the issue of sanction, Hill pointed to the American Bar Association’s Standards for Imposing Lawyer Sanctions. Under those standards, he said, the worst he should receive is a public or private reprimand. He said the mitigators in his case outweigh aggravators, including the mitigator of remorse.
“The Respondent is genuinely remorseful,” Lundberg wrote. “The Respondent apologized on June 29, 2018, when he had a telephone conversation with Speaker (Brian) Bosma and Sen. (David) Long. He reiterated his apology during testimony.
“He has defended himself in this case, but has done so because he has legitimate, good faith defenses, and because the Taft Report was purposely leaked and flawed by all accounts,” he continued, referencing the confidential memo that was leaked to the media and brought the allegations to light. “It is not inconsistent with remorse that the Respondent has vigorously defended himself in this case.”
Another mitigator, Hill said, is the fact that the three southern Indiana judges who were involved in a May 2019 shooting in Indianapolis — Clark County judges Andrew Adams and Bradley Jacobs and Crawford County Judge Sabrina Bell — received 30-60-day suspensions with automatic reinstatement. Adams was convicted of a misdemeanor as a result of the violent altercation at a downtown White Castle restaurant. “The Respondent’s alleged conduct pales in comparison to the behavior of the White Castle judges in the early morning hours of May 1, 2019. At the sine die party, no one was injured, let alone almost killed. There was no gunplay. No one was brawling on the barroom floor. No one was arrested. No one was criminally charged. No one was convicted.”
Hill’s brief also challenges evidentiary rulings made by Selby throughout the disciplinary proceedings. He urges the justices to dismiss his case entirely.
In its own brief on sanctions, the Disciplinary Commission says Selby made findings that were “detailed, complete, and well-supported by the evidence.” The commission supported the recommendation that Hill serve a suspension without automatic reinstatement, though it advocated that he be suspended for longer than 60 days.
“There has not only been a lack of expression of remorse by Respondent, his actions of retaliation and continuous false denials prove Respondent’s scorn for those who dare come forward to complain about his conduct,” the commission wrote Monday. “The Supreme Court has determined that a lack of remorse warrants a lengthy suspension without automatic reinstatement, even for what is otherwise minor misconduct (which in no way is the case here).”
The commission had originally alleged that Hill also violated Admission and Discipline Rule 22 by committing “offensive personality,” but Selby disagreed. She also did not find that Hill committed sexual battery against DaSilva, specifically.