Tuesday, October 08, 2013

Indiana Supreme Court Sides With Attorney In Judicial Bias Case

The Indiana Disciplinary Commission filed a complaint against an attorney in northern Indiana, Thomas Dixon, because of allegations of bias and prejudice that he asserted in a motion seeking the recusal of a St. Joseph County judge, Jenny Pitts Manier, who was presiding over a case in which the lawyer's clients, pro-life students at Notre Dame, had been arrested for protesting during a visit to the campus in 2009 by President Barack Obama. Although the judge ultimately recused herself in the case, she shortly thereafter filed a complaint against Dixon accusing him of attorney misconduct for statements he made in his recusal motion about the bias and prejudice he alleged she had shown in the case. At the conclusion of Dixon's hearing, a hearing officer appointed by the Supreme Court, Marion Superior Court Judge Gary Miller, concluded that Dixon had violated the rules of professional conduct by asserting that she was led to make factual or legal errors so as to negatively affect his client's rights due to her alleged bias and prejudice.

The Commission contended that statements the lawyer made in his recusal motion violated Rule 8.2(a), which requires that "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 the judge." The hearing officer disagreed with the Commission's argument that Dixon had violated the rule by drawing inferences about her bias or prejudice based on her husband's long-standing work as pro-abortion activist on the Notre Dame campus while teaching at the university and following his retirement; however, he found that Dixon had crossed the bounds of Rule 8.2(a) by suggesting she intentionally misapplied the law and drew conclusions of fact adverse to his client because of her bias or prejudice. Here are the statements the hearing officer concluded violated Rule 8.2(a):
Statement B. "Judge Manier's inability to admit the intellectual and political (in the sense of policy setting) consanguinity between her husband's career mission and Notre Dame's current mission, calls into profound question her ability to navigate the waters of defendants' legal defenses related to their contractual rights to be where they were when they were arrested."  
Statement C. "Judge Manier's ruling applying the injunction to Mrs. Kendall can be explained in only one of two ways: either Judge Manier did not understand the privity requirement of Trial Rule 65, or she did not feel duty bound to apply the rule because she was biased in favor of the abortuary."
Statement D. "Judge Manier's refusal to allow Marsh into the case, when she knew Mrs. Kendall wanted out of the case, 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 Marsh's legal rights without giving him the ability, as required by Trial Rule 24, to have a voice in the process or defend the same."
In issuing an order today vacating the hearing officer's conclusion that Dixon engaged in attorney misconduct, the Indiana Supreme Court established the applicable standard for determining whether an attorney's speech violates Rule 8.2(a). The respondent had argued that the Court should adopt the subjective standard the U.S. Supreme Court applies to defamation cases involving public figures. In New York Times Co. v. Sullivan, the Supreme Court adopted an actual malice standard, which requires that a person make a statement with actual knowledge it was false or with reckless disregard to whether it was false or not. The state's Supreme Court rejected that subjective standard in favor of an objective standard where the court determines what "a reasonable attorney, considered in light of all of his professional functions, would do in the same or similar circumstances, and considering whether the attorney had a reasonable factual basis for making the statement."

In reaching its decision today, the Court stated that an attorney's free speech rights "are not coextensive with the limits of the First Amendment." Secondly, the Court said attorneys "are expected to exercise reasonable objectivity in their statements about judicial officers." In finding that Dixon did not commit attorney misconduct, the Court gave considerable weight to the fact that the rule upon which he relied to seek the judge's recusal required him to show bias or prejudice, and the Court must give some latitude to argue what the rule requires of him to protect his client's interest. The Court noted that Dixon supplied the Court with documents totaling 40 pages in length in support of his argument that she should recuse herself.

Many Indiana attorneys are breathing a sigh of relief with today's decision. Members of the bar have been shocked and appalled at the aggressive nature of recent cases brought by the Disciplinary Commission seeking to impose harsh penalties on attorneys, including suspension for lengthy periods of time, for violating Rule 8.2(a) at the same time it's meting out seemingly less harsh penalties for attorneys who engage in serious misconduct towards their clients. Dixon's case had already had a chilling impact on Indiana attorney's willingness to ask judges to recuse themselves when they believed they might be biased or prejudiced towards their clients. I still recall asking respected elections law and First Amendment attorney Jim Bopp why he didn't ask a judge in one of his cases to recuse himself due to public statements the daughter of the judge hearing his case had made that were extremely prejudicial to his client's interest. Bopp responded that he had never asked a judge to recuse himself and never would because nothing good can from it. Bopp, who has represented pro-life groups, probably had Dixon's case in mind when he shared that comment with me.


CircleCityScribe said...
This comment has been removed by the author.
Gary R. Welsh said...

The Indiana Supreme Court adopted the higher objective standard, not the lower subjective standard from the Sullivan case. The case makes no reference to what the Indiana Constitution's free speech clause requires.

Anonymous said...

...in my humble opinion, the actual malice standard, as well as Article 1, Section 9 of the Indiana Constitution, and the State Supreme's finding that attorneys "are expected to exercise reasonable objectivity in their statements about judicial officers" are consubstantial.

Anonymous said...

"In reaching its decision today, the Court stated that an attorney's free speech rights "are not coextensive with the limits of the First Amendment.""

And I say they are. A court just doesn't get to edit the Constitution and invent classes of people to whom it applies.

When words no longer work, what option does the court leave the people?

Anonymous said...

Anonymous 10:55:

I'll answer your question: "When words no longer work, what option does the court leave the people?"

-Legislation from the bench in violation of the Separation of Powers clause.

Paul K. Ogden said...

Excellent analysis, Gary.

With all due respect to the Indiana Supreme Court, I don't think the objective standard is the right standard. Rule 8.2 is patterned after the Model Rules which expressly adopted the subjective actual malice standard set forth in NY Times v. Sullivan. In fact, Rule 8.2 uses the exact same language as NY Times v. Sullivan.

The US Supreme Court carved out an exception to the Free Speech clause in NY Times v. Sullivan. So it's not clear how states can come along and widen that exception and, thus, limit free speech more that the Supremes said it could be limited.

The U.S. Supreme Court has said that attorneys have the same free speech rights as non-attorneys. The Court has said that the fact the speaker is an attorney and more likely to be believed is not a basis for stricter limits on their speech. Yet state courts continue to use this reasoning to justify harsher limits on attorney's free speech.

The U.S. Supreme Court has said that disciplinary rules can be used to limit that speech is when attorneys are speaking out publicly in a way that's likely to interfere with the administration of a pending case. (Such as what Brizzi was charged with doing.) Other than that, it does not appear the U.S. Supreme Court would tolerate the attorney free speech limits being imposed by state disciplinary bodies.

I do agree with CircleCityScribe that Indiana's Constitution provides stronger free speech protection than the free speech clause in the U.S. Constitution. I don't know how his conclusion follows then that the actual malice standard is not the right standard.

Anonymous said...

The St. Joseph County Bar Assoc is holding an all day CLE session with the choice of many topic alternatives, on Nov. 14, 2013.

Mr. Witte is one of the presenters
at 11 AM until noon on the topic of 2013 Disciplinary cases.

What will he say if asked by an attendee what he thinks concerning the implementation of this opinion
in future cases?

Anonymous said...

Why doesn't Ogden lay a 1983 suit on Witte? Let's get this case in front of Posner in Chicago. I doubt Chicago will look with too much favor on what occurs in Indiana courts, especially since Desrshowitz publicly excoriated Indiana courts as being the most result-oriented courts in the country.

The great fallacy in this issue is that, sure, the Model Rules track N.Y. Times v Sullivan, but that case is merely bench-made law. Here, the court is inventing new bench-made law to avoid complying with other bench-made law. Is the governmental product of the third branch really just a sham?

We're at a point where we can't even get a branch of government to adhere to its own methodology - that it created for itself and ensured the governed that the methodology was constitutional, though nowhere permitted in the constitution.

Does this country truly have "law," or merely case-by-case desired outcomes? The sands shift under our feet before and during each case.

bjb said...

Gary, per your previous comment about a well known attorney who categorically removes a motion to recuse from his litigation tools .... I bet the Notre Dame 88 thank God they had Tom Dixon ... and every Indiana attorney should thank Tom Dixon for having the moxie to file a motion that some would rather never do .... since it could cost them. (Never mind their clients' best interest?)

bjb said...

Anon. Rooker-Feldman is why. Ogden has no federal court option, he is at the mercy of the state judiciary.

Anonymous said...

Rooker-Feldman is inapposite, bjb. When state courts become actors under color or law, instead of arbiters of state-law cases, 1983 liability attaches.

That is, when a governmental actor engages in executive action, and not merely judicial action, such person is subject to 1983.

Under your rationale, all policing, jailing, prosecuting, and execution of sentences could be conducted entirely by the judicial branch, and the federal courts would have no oversight.

JudgeNot said...

Tahnk you for accurately posting the precise language I believed crossed the line of professional argument in this case under then applicible rules and case law.

bjb said...

Anon, yes, that is what I thought too. And then Brown v. Bowman. Actually abstention doctrines also stand in the way as well as R-F. R-F needs to be scaled back, I thought mine was the case to do that. Not so. Read my briefing on Scribd, including briefs that I wrote with the aid of Charles Rice and Walter Weber. Pathway here: http://www.archangelinstitute.org/archangel-michael/

Sad fact is that the Indiana authorities need only the green light from the Indiana S.Ct. to lynch an attorney, since the SCOTUS as a supervising court is practically awol. If the Ind.S.ct decides that Paul goes to the gallows, then to the gallows he will go. Just like I did.

bjb said...

Advocacy Journalist happening right now? Note that TheIndianaLawyer.com did not allow the headline of the very important Dixon case to stay up long ... the lead has been buried. And yesterday they began going back and reposting Ogden stories (and likely others) without the comments?

Fear of the angry mob seeking the rights guaranteed us under the Indiana constitution perhaps?


Anonymous said...

Mr. Brown, obviously a court can stand on the neck of any case, logically defensible rationale, be damned.

For this reason, I've always laughed at the entire enterprise of law review.

Ogden's case is a prime moment for the federal judiciary to get involved in self-policing of the legal profession, as what Indiana is doing is impugning the credibility of an entire branch and doing significant constitutional damage.

If nothing else, a 1983 suit would embarrass the Indiana Supreme Court and force them to appear in Chicago to explain their down-on-the-farm thinned-skinnery to streetsmart big-city folk who have a much better sense of what slights require a response.

Of course, the Northern District might very well want to avoid getting caught up in Indiana's thuggery and might not want to risk their own rebuke from Chicago, so they might let Ogden's case proceed.

As Ogden would feel the pain of an adverse Supreme Court ruling anywhere in the state, and as people become tougher the closer they are to Chicago, he might consider filing a 1983 action in the Lake County U.S. District Court.

bjb said...

Anon, Ogden could file in the Northern District. Venue for him to get bounced on abstention and Rooker Feldman would lie in the federal court in Indianapolis. While my case was arguably viable as a 42 usc 1983 due to the fact that I had no legal recourse against JLAP and their designates in the state proceedings, Paul cannot make such an argument. He will not file a 1983 case, not because he lacks the cajones, he has plenty of cajones, but because he realizes that you are wrong on the law and he would be stuffed, the court using, I sadly report, my case as one of the party crashers.

Anonymous said...

Mr. Brown:

I suspect your case was mismanaged in one or more profound ways.

Don't be personally offended to see Ogden succeed.

This is from your case: "Based on this, Ross issued a report noting the possibility of a sub-clinical bipolar disorder of a hypomanic type but concluding that nothing should preclude Brown's application from going forward."

If you would have said nothing further beyond this report, you'd have a law license. When you bulged everyone's mailboxes with your subsequent "voluminous" letters demanding the retraction of this report, you cost yourself the license.

Ogden stands in a much different footing. He already has a license. He has years of demonstrable integrity before the court, so he has already shown good moral character.

You wanted to get your license your way, instead of a way. Don't sink Ogden to validate your martyrdom.

Evidence sank your case, not law. The 7th Circuit spent much time reviewing the evidence before concluding to let the ruling stand.

I see nothing stopping you from reapplying for a license. You're just going to have to lay low, be chill and make it appear that you're willing to listen to the court and not be such a freak.

"Brown made more than sixty complaints to the JLAP and BLE about Bowman's opinion and requested a civil rights investigation."


bjb said...

bjb says ..... My bad, meant to type could NOT file in ND

bjb said...

"Brown made more than sixty complaints to the JLAP and BLE about Bowman's opinion and requested a civil rights investigation."

Did not happen. Was not in evidence. An exaggeration by a great many times. Never was in evidence, but that did not stop the system, evidence did not matter, much of what my case was ... character assassination. Evidence be damned. From the inside ... as you purport to report.

Hey, I wish Paul the very best. And if he can get into federal court, that would be fantastic!

bjb said...

All, realize that when you fight city hall, that is, take on the government, they have so very many cards to play. Including, in my case, misstating the record on appeal. I was tempted to file ethics charges, but at some point one just have to accept that bad government usually gets its way. Here is the briefing where I called it what it was: http://www.scribd.com/doc/63853640/Appellants-reply-brf-112164

And truth be told, I did not even write JLAP at all about the Bowman report, I just wrote one analysis to the IBLE, called for it to be excluded due to unprofessional biases and even the misprepresentation of another doctor's report (which she admitted to in her answer). I did call for a civil rights investigation, and had I been a homosexual, woman or racial minority I can assure you that such would have been conducted. The facts? Check out my verified complaint and Bowman's filed answer. She lied in her report, admitted to the lie, and still the federal court invoked R-F. So justice turns on whether I was quiet about being railroaded?

Paul K. Ogden said...

Anon 8:46., Brown's case was dismissed at the federal district level due to the immunity of the psychiatrists. I believe the federal appeals affirmed that ruling. While there is a question regarding whether immunity should apply, the federal court case did not seem to be at all about the merits of his case.

Thank you for your comments though. "Demonstrable integrity." I like that.

Paul K. Ogden said...

I would point out that winning a 1983 case in our local federal district court is very, very, very, very, very, very difficult. Due to the misapplication of the federal summary judgment rule, you'd be hard pressed to get it by summary judgment. Defendants don't even try to settle 1983 cases before summary judgment. They know there is about a 90% chance it will be dismissed at summary judgment.

There is also some case law out there that says you have to litigate challenges to the disciplinary process in the state system. An attorney got around that in Kentucky to get an order against the disciplinary commission of that state, but that case is an exception.

Hopefully the above won't be taken as a criticism of our local federal judges who I dearly respect and admire and I'm not saying that just to avoid another Rule 8.2 charge for criticizing judges.

bjb said...

Thank you, Paul, anon claiming that disputed evidence sank my case, which was up on a 12b6, is an allegation that the rule of law was not followed. I do find myself agreeing, in part, with anon that a glimmer of hope for federal court is yours, however, Paul. If the current factfinder does not take into account the way in which the system has already been misused against you, and does not consider the sea change that is the Dixon opinion, well then Marie Loubser's case, which was pled as judicial corruption, may offer you, sir a path to federal court. So anon, thanks for asking that this be rethought on my part. Here is the Loubser opinion which just might open a federal option for Paul: http://caselaw.findlaw.com/us-7th-circuit/1353347.html

bjb said...

Fresh air that needs to blow through the Indiana courts via Loubser: The claim that a defendant in a civil rights suit “so far succeeded in corrupting the state judicial process as to obtain a favorable judgment” is not barred by the Rooker-Feldman doctrine.  Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir.1995).   Otherwise there would be no federal remedy other than an appeal to the U.S. Supreme Court, and that remedy would be ineffectual because the plaintiff could not present evidence showing that the judicial proceeding had been a farce, cf.  Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (Holmes, J.);   one cannot present evidence to an appellate court.

Anonymous said...

Paul, the 7th Circuit opinion focused exclusively on the merits of Brown's case.

Read it. They went through considerable trouble to make it appear that the Indiana Supreme Court had a flake on their hands. The 7th Circuit was a factual review, but since they're not a trial court, they ruled with what they had available to them.

Your case is entirely political prosecution, another matter, entirely. Your 10:29 comment evinces that you didn't read yesterday's 10:11 comment.

Of course, "winning a 1983 case in our local federal district court is very, very, very, very, very, very difficult." That's the entire point. This case is so tyrannical that it's embarrassing to them. Force them to act predictably.

I understand that you may (or not) have to exhaust certain state remedies, first, but crack open that Digest, and find a way to craft this case.

By attacking federally protected free speech, Witte has acted under color of state law to deny you your civil rights. That's the law, and I don't think Congress intended for any governmental branch shell game to allow state actors to elude its application.

Force them to blink. After all, if Witte gets his way, you've admitted you're done, anyway. What else is there to lose?

bjb said...

Anon, claiming insider status (likley the AG's office given probabilities), wrote "You wanted to get your license your way, instead of a way."

FOR THE RECORD ... all of my briefing, my petition to the SCOTUS from the IndSCt and my federal litigation argued that the Indiana government had to process me not as I deemed fit, but without violation the First Amendment, Fourteenth Amendment or these two largely ignored, allegely non-violative rights: Section 3. Freedom of religious opinions: No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.
Section 5. No religious test shall be required, as a qualification for any office of trust or profit.

bjb said...

As for me being a flake ... what if I am. So leftists on the IBLE or in JLAP can deem one a flake and all should turn their heads while that one goes to the gulag for five years? Is that the American way? I am no more flakey than those religous nuts who penned the following paragraphs, and actually stood on the same ground when out and out asked, by the IBLE, where I stood (a question too far by far):

TO THE END, that justice be established, public order maintained, and liberty perpetuated; WE, the People of the State of Indiana, grateful to ALMIGHTY GOD for the free exercise of the right to choose our own form of government, do ordain this Constitution.

Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the People; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the People have, at all times, an indefeasible right to alter and reform their government.


Check the record. And yes, the seventh circuit opinion did get teh record wrong, thanks to the AG office blatantly misstating it. Such is litigation in an age lacking principles and seeking only and end, in this case the career death of a "flake."

bjb said...

Since the record that was grossly misstated to crash my appeal (see footnotes in the reply brief cited above) has been put at issue by someone claiming inside status while encouraging Paul to file federally, I thought I should post an example of how i tried to show the system its error in violating the Indiana Constitution while processing me. This post contains excerpts from one of two letters I went to JLAP social worker Tim Sudrovech. http://www.archangelinstitute.org/the-minnesota-multiphasic-personality-inventory-is-a-tool-for-discrimination-against-christians/
Questioning the constitutionality of state actions can render one a flake? Yes, if you are a conservative it can. Now if you are a leftist, well then question away.