Friday, September 13, 2013

Two Attorneys Face Discipline for Asking Judge to Recuse Herself; Ruling Affirming Hearing Officer Would Gut Recusal Standard

Let's say as an Indiana attorney you have decided to ask the judge to recuse himself or herself.  If you want to continue practicing law in the State of Indiana you might want to reconsider that after reading about the disciplinary charges two Indiana attorneys are facing. 

Judge Jenny Pitts Manier
The fact scenario begins with President Barack Obama giving a commencement speech at Notre Dame on May 16, 2009.  The visit sparked anti-abortion protests at the Catholic university.  As a result, 88 pro-life protesters were arrested and charged with trespassing.

Two Indiana attorneys - Thomas Dixon of Osceola and David Wemhoff of South Bend - were retained to provide the defense.  Dixon represented almost all the clients, Wemhoff just a handful.  The cases were consolidated and set before St. Joseph Superior Court Judge Jenny Pitts Manier.

Dixon and Wemhoff  immediately asked for Judge Manier to recuse herself.  Manier's husband of 35 years is Edward Manier, a philosophy professor at Notre Dame University who is a former Catholic and a well-known advocate for abortion rights.  Judge Manier refused to recuse herself.  After several negative preliminary rulings that the attorneys believed were highly contrary to law, Dixon and Wemhoff again asked Judge Manier to recuse herself including this time more detail with their own affidavits. They also suggested that the preliminary rulings that violated Indiana law could be indicative of the bias that they complained of.

Lifesitenews.com reported on the motion to reconsider:
Attorney Tom Dixon's motion provides detailed support for his assertion in a previous recusal motion that there exists sufficient actual and perceived bias that Judge Jenny Pitts Manier, the judge assigned to the "ND 88" case, is required by Indiana state law to recuse herself in the matter.  Dixon states that ever since Judge Manier has known her husband, Professor Edward Manier, he has been a well-known and outspoken advocate of the pro-abortion position.

As his views were well-known and have largely defined his identity at Notre Dame, Dixon argues, it seems implausible that Judge Manier could claim to be unaware of his views on the "ND 88" case, which stem from "the single biggest controversy in the history of the University of Notre Dame."
Judge Manier denied the motion to reconsider, but certified the issue for for interlocutory appeal. Then she went running to the Disciplinary Commission to complain about Dixon and Wemhoff.

The trespassing criminal charges were eventually dropped. 

As a side note, I clerked for Judge Paul H. Buchanan, Jr. of the Indiana Court of Appeals.  We once received a rehearing brief in which the attorney referred to the judge and the two others on the panel as something like "The Old Man and the Two Little Ladies."  When I brought it to the judge's attention, he had a good laugh, said the attorney was just blowing off steam and it was no big deal.  He said, "If you are going to be a judge, you should expect criticism, even criticism that you think is unfair or inaccurate. If you are unwilling to accept that, you should look for another line of work."   Thin-skinned Judge Manier needs to follow Judge Buchanan's sage advice and look for another line of work.

The Disciplinary Commission, which is led by former Dearborn County Judge Michael Witte, filed Rule 8.2 charges against Dixon and Wemhoff for impugning the integrity of Judge Manier.  The prosecution is being led by Seth Pruden, a DC attorney who has prosecuted other assaults on attorney free speech via the disciplinary rules.   Pruden's foray into using Rule 8.2 to sanction attorneys for criticizing judges is particularly surprising in light of his own blatant violation of that rule.  During a meeting I had with him Pruden said the reason why Marion County judges have not been making the required determination of law enforcement costs in order to cut the balance to the Common School Fund is that "they are just lazy."  Since Mr. Pruden can't actually prove the Marion County judges are lazy, then by the DC's standard (which does not even require the statement be public, or be of fact as opposed to one's opinion, and imposes the burden of proof on the attorney to show the statement is true) he violated Rule 8.2.

But I digress.  Judge Gary Miller, before earlier this year returning to the Marion County bench, was appointed hearing officer on the cases.  Dixon's case has proceeded farther than Wemhoff's and was heard by Miller who on January 25, 2013 issued a lengthy decision.

Miller's ruling, which Dixon has asked the Indiana Supreme Court to review, should be of grave concern to every practicing attorney in the State of Indiana.  Miller said that Dixon was perfectly justified in pointing out that Judge Manier might be influenced by her 35 year marriage to a pro-choice activist.  Miller also said Dixon was right to argue that the Judge's preliminary rulings were wrong.  Miller, however, said that Dixon's motion crossed the line when he said the allegedly erroneous rulings could be proof of that judicial bias.  That, according to Miller, suggests an "improper motive" for a ruling and thus impugns the judge's integrity in violation of Rule 8.2.

Now I like Judge Gary Miller.  He has excellent judicial temperament, is very intelligent, and frankly is one of the best judges I have been before in Marion County.   I have to believe though he had reservations about handing down a decision, which if adopted by the Indiana Supreme Court, would make attorneys across the state fearful of ever filing a motion to recuse.

As Chief Justice Shepard noted in his recusal opinion in Tyson v. State, 622 N.E. 2d 457, 459 (Ind. 1993), the recusal standard for impartiality is quite low:
"whether an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge's impartiality.

"The question is not whether the judge's impartiality is impaired in fact, but whether there exists a reasonable basis for questioning a judge's impartiality. In re Beard, 811 F.2d 818 (4th Cir.1987). Concerns about public confidence in the judicial system underly Canon 3. See United States v. Hollister, 746 F.2d 420 (8th Cir. 1984). A judge has a duty to promote public confidence in the impartiality of the judiciary. Ind. Judicial Conduct Cannon 2.  Tyson, 622 N.E.2d at 459. A judge must disqualify himself where his impartiality might reasonably be questioned. Id. at 460; Mahrdt, 629 N.E.2d at 248."
Dixon's merely suggesting that there might be a connection between the rulings and bias was simply an attempt to meet the recusal standard that he set forth a "reasonable basis for doubting the judge's impartiality."  The Disciplinary Commission, however, says that if you are going to suggest a judge might be biased in a recusal motion, you better be able to PROVE the judge is actually biased.  The failure to do so means the attorney can face sanctions for violating Rule 8.2, i.e. impugning the integrity of a judge   Judge Miller's decision, if adopted by the Indiana Supreme Court, will completely gut the recusal standard and make every attorney filing a motion to recuse subject to disciplinary sanctions.

It is a shame that Judge Witte's Disciplinary Commission cannot seem to find any unethical attorneys out there to prosecute and instead has to spend its precious resources targeting attorneys who dare to criticize a judge in or out of court.  In Mr. Dixon's case he was simply doing his job as a zealous advocate of his client.  The Rule 8.2 charges against him are absurd.

NOTE:  Some alert attorneys pointed out to me that if Dixon had failed to push for Judge Manier's recusal his client that could later be the basis for an ineffective assistance of counsel claim, a malpractice lawsuit, or even, ironically, a disciplinary action for failing to zealously represent a client.

1 comment:

David Voelkert said...

To be a judge you need to show professionalism, you need to follow the law. It seems when a judge starts to break the law and do what they wish, the system starts it's break down. Then when you bring this proof to the Supreme Court and the uphold the judge's good standings, even though you have absolute proof of the wrong doing, misconduct and actual law violations, that is when you know this justice system needs a change. Life is to fragile, so laws were written for a reason, NO ONE should be immune. This government needs a change, the judges need to be accountable for their misconduct, and until that happens, they will continue to do what they want to. We need to stand together for a better government.

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