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.

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