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Suing Judges - Judicial Immunity
A collection of case lawAlso check out Suing A Judge
and Immunity PageAre you thinking about suing a judge? Before you do, read this. It is some case snippets that cover
the basics on suing judges. For more information, look up the case law yourself. Frank BARRETT, Plaintiff-Appellee,
v. Nancy I. HARRINGTON, a/k/a Penny Harrington, Defendant-Appellant. No. 96-6207. United States Court of Appeals, Sixth Circuit.
Argued Aug. 5, 1997. Decided Nov. 20, 1997. --- F.3d ---- ------------ Excerpt from page 1997 WL 721830 (6th Cir.(Tenn.))
(A) Letters to Prosecutors The discrete issue presented here is whether a judge's instigation of a criminal investigation
against a disgruntled litigant, taken to protect the integrity of the judicial system, is a "judicial act" and therefore
entitled to absolute judicial immunity. As noted above, the Supreme Court has formulated the two-prong functional test
to determine whether an act is judicial. The first prong of the functional approach asks whether the function is one "normally
performed by a judge." Stump, 435 U.S. at 362. Clearly, the instigation of a criminal investigation by the filing of
a complaint is not itself a paradigmatic judicial act, i.e., an act which occurs in the context of resolving disputes between
two parties. Forrester, 484 U.S. at 227. --- F.3d ---- ------------ Excerpt from page 1997 WL 721830, *10 (6th
Cir.(Tenn.)) FN11. In the following cases, courts have found that the judges acted in their judicial capacity and were entitled
to immunity: Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)(judge's alleged actions in directing police
officers to bring attorney who was in the courthouse into his court were taken in judge's "judicial capacity"
and, thus, judge was immune from S 1983 suit, even though judge allegedly directed officers to carry out order with excessive
force); Burns v. Reed, 500 U.S. 478, 492, 111 S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991)(issuance of a search warrant is unquestionably
a judicial act); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)(Indiana circuit court judge performed
an act normally performed by judges in approving a mother's ex parte petition to have her 15 year old "somewhat retarded"
daughter sterilized); Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1520, 16 L.Ed.2d 600 (1966)(a judge acts in a
judicial capacity when exercising control of the judge's courtroom); Ireland v. Tunis, 113 F.3d 1435 (6th Cir.1997)(issuance
of an arrest warrant was a judicial act); Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir.1994)(state probate court judge's
actions of not taking probate court employee's recommendations on disposition of juvenile cases, and barring employee's
admittance into court were judicial acts and therefore subject to immunity despite the employee's allegations that judge
made his decisions out of hostility arising from the employee's marriage to judge's secretary); Sparks v. Character
and Fitness Committee of Kentucky, 859 F.2d 428 (6th Cir.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183
(1989)(actions taken by State Supreme Court, and Committee on Character and Fitness in denying application for admission to
state bar were judicial acts); Ashelman v. Pope, 793 F.2d 1072 (9th Cir.1986)(extending judicial immunity to a judge who allegedly
conspired with a prosecutor to predetermine outcome of proceeding). In the following cases, courts have found that the
judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct.
538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision
to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled
to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through
January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert.
denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the
act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was
nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution
and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development
Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate
was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole
assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied,
454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not
judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around
domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert.
denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials
which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge
as part of a racial campaign to discredit lieutenant were not judicial acts). --- F.3d ---- ------------ Excerpt
from page 1997 WL 721830, *18 (6th Cir.(Tenn.)) Gregory JOHNSON; Albert P. Owens; Robert Lynn Hill; Eddie Luellen, Plaintiffs-Appellants,
v. Kenneth Austin TURNER, Individually and in his capacity as elected Juvenile Court Judge of Memphis and Shelby County; Herbert
Lane; Michael H. Craig; A.C. Gilless, Individually and in his capacity as Sheriff of Memphis and Shelby County; Shelby County
Government, a Home-Ruled County Governmental Entity Operating as a Governmental Municipality; Veronica Coleman, Individually
and in her capacity as Shelby County Government Attorney-Employee; William Moore; Virginia Skinner, Individually and in her
capacity as Shelby County Deputy Sheriff in charge of the criminal warrant division, Shelby County Government; Harold Horne,
Individually and in his capacity as Shelby County Government Attorney-Employee, Defendants-Appellees, State of Tennessee,
Intervening Defendant-Appellee. No. 94-5919. United States Court of Appeals, Sixth Circuit. Argued Oct. 16, 1995. Decided
125 F.3d 324 Thus, for example, a judge may be liable for action taken in his role as employer, Forrester v. White,
484 U.S. 219, 227-30, 108 S.Ct. 538, 544-46, 98 L.Ed.2d 555 (1988) (demotion and discharge of court employee is an administrative
decision and not "a judicial act"), or for an action that is administrative in nature and that does not alter the
rights and liabilities of the parties, Morrison v. Lipscomb, 877 F.2d 463, 464-66 (6th Cir.1989). This court also has held
that the initiation of accusatory processes, such as criminal prosecutions or civil contempt proceedings, is a non-judicial
act that may subject a judge to liability. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984). However, recently, in Barnes,
we explained that the exception to absolute immunity, when a judge engages in a purely prosecutorial function, is a narrow
one; and, even if the judge encroaches upon prosecutorial functions, the *334 broad shield of absolute immunity is not automatically
overcome. 105 F.3d at 1118-119. 125 F.3d 324 ------------ Excerpt from pages 125 F.3d 324, *333-125 F.3d
324, *334 Johnida W. BARNES, Plaintiff-Appellee, v. Byron R. WINCHELL, Defendant-Appellant. No. 95-4008. United States
Court of Appeals, Sixth Circuit. Feb. 3, 1997. 105 F.3d 1111 It is precisely when an issue facing a judge sparks intense
emotions that the judge's fidelity to independent and fearless decisionmaking is of the utmost importance. See Stump,
435 U.S. at 364, 98 S.Ct. at 1108 (recognizing that the controversial nature of the issue "is all the more reason that
[a judge] should be able to act without fear of suit."). To render a judge liable to answer in damages to every litigant
who feels aggrieved during the course of judicial proceedings, "would destroy that independence without which no judiciary
can be either respectable or useful." Bradley, 80 U.S. (13 Wall.) at 347. Accordingly, we conclude that Judge Winchell's
actions as the presiding judge in the underlying criminal prosecutions of Ms. Barnes do not amount to non- judicial acts stripping
him of the absolute judicial immunity presumptively available to him. F. Claim of Absence of All Jurisdiction [11] Having
determined that Judge Winchell's actions were judicial, we next consider whether Judge Winchell acted in complete absence
of all jurisdiction, the second prong of a judicial immunity inquiry. See Mireles, 502 U.S. at 12, 112 S.Ct. at 288. Ms. Barnes
claims that Judge Winchell never properly acquired jurisdiction over the misdemeanor charges against her because the prosecutor
had only authorized criminal trespass actions. The term "jurisdiction" is to be broadly construed to effectuate
the purposes of judicial immunity. Stump, 435 U.S. at 356, 98 S.Ct. at 1104-05. Acts done "in the clear absence of jurisdiction,"
for which no immunity is afforded, should be distinguished from actions in "excess of jurisdiction," which fall
within the ambit of immunity protection. Id. at 357 n. 7, 98 S.Ct. at 1105 n. 7 (quoting Bradley, 80 U.S. (13 Wall.) at 351-52).
Thus, for example, a criminal court judge would be immune from liability for convicting a defendant of a nonexistent crime,
an act taken in excess of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a
criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352). [12]
Generally, where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity purposes. Adams,
764 F.2d at 298. In Sevier, despite the fact that a judge of limited jurisdiction ordered the initiation of criminal and contempt
proceedings, this court noted that the judge was "empowered to handle Juvenile Court cases ... [and], therefore, did
not act in the clear absence of all jurisdiction." Sevier, 742 F.2d at 271; see also Lopez, 620 F.2d at 1234 (despite
not being assigned to the particular branch of court, the judge was authorized by law to hear the kind of case in which he
acted; his actions were not taken in clear absence of all jurisdiction). [13] In this case, Judge Winchell had jurisdiction
over the subject matter of the underlying actions. The Chillicothe Municipal Court has specific statutory jurisdiction over
"the violation of any misdemeanor committed within the limits of its territory." Ohio Rev.Code Ann. S 1901.20(A)
(Banks- Baldwin West 1996). "In any action or proceeding of which a municipal court has jurisdiction," a municipal
court judge is further authorized "to exercise any other powers that are necessary to give effect to the jurisdiction
of the court and to enforce its judgments, orders, or decrees." Ohio Rev.Code Ann. S 1901.13 (Banks-Baldwin West 1996).
Although the municipal court is a court of limited, rather than general, jurisdiction, we have held that even "judges
of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts unless they act in the clear absence
of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d
320 (1985). In the present action, the complaint states that the local prosecuting authority had granted Scott and Carolyn
Barnes authorization to initiate criminal proceedings against Ms. Barnes. Compl. P 12. Both criminal trespass and menacing
by stalking, the two *1123 potential crimes at issue here, constitute misdemeanors over which the municipal court properly
could maintain jurisdiction. Therefore, by statute, Judge Winchell was empowered to preside over the criminal proceedings
that flowed from these misdemeanor complaints. Even assuming that there was a procedural problem with respect to the scope
of the prosecutor's authorization, Judge Winchell was not wholly without jurisdiction. Such a situation would more closely
resemble a judge convicting a criminal of a non-existent crime than a probate court judge trying a criminal case. Thus, Judge
Winchell's actions were not taken in the clear absence of all jurisdiction. Finally, included in the absolute judicial
immunity balance is the availability of alternate forums and methods, apart from a civil suit for damages, for litigants to
protect themselves from the potential consequences of actions taken by a judge. See Forrester, 484 U.S. at 227, 108 S.Ct.
at 544 (emphasizing that a damages suit is not a litigant's only recourse: "Most judicial mistakes and wrongs are
open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated
with exposing judges to personal liability."). If Ms. Barnes felt that Judge Winchell was exceeding his authority or
taking an inappropriate personal interest in her cases, she had at her disposal appropriate recourse through Ohio appellate
courts, and/or the procedural mechanism to disqualify a municipal court judge, Ohio Rev.Code Ann. S 2937.20 (Banks-Baldwin
West 1996). In fact, the complaint details that Ms. Barnes successfully utilized the latter method. Compl. P 17. 105
F.3d 1111 ------------ Excerpt from pages 105 F.3d 1111, *1122-105 F.3d 1111, *1123 Thomas Martin MALINA
and Mrs. Thomas Martin Malina, Plaintiffs-Appellees, v. Judge Douglas GONZALES, Defendant-Appellant. No. 91-3757. United States
Court of Appeals, Fifth Circuit. June 25, 1993. Rehearing Denied Aug. 26, 1993. 994 F.2d 1121 227k36 k. Liabilities
for official acts. C.A.5 (La.),1993. Judge's actions in stopping motorist on highway, using police officer to summon motorist
unofficially, and charging motorist with various crimes were not judicial acts for purposes of claiming absolute judicial
immunity. 994 F.2d 1121 RICO Bus.Disp.Guide 8083 Unpublished Disposition NOTICE: First Circuit Local Rule 36.2(b)6
states unpublished opinions may be cited only in related cases. (The decision of the Court is referenced in a "Table
of Decisions Without Reported Opinions" appearing in the Federal Reporter.) C.D. Di GIAMBATTISA, Plaintiff, Appellant,
v. Sheila E. McGOVERN, et al., Defendants, Appellees. No. 92-1168. United States Court of Appeals, First Circuit. September
4, 1992 974 F.2d 1329 (Table) ------------ Excerpt from page 974 F.2d 1329, 1992 WL 214444 (1st Cir.(Mass.))
Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were
incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so."
Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the common law, judges are generally immune from civil liability for judicial
acts, subject to the conditions described above, but they do not enjoy immunity from criminal liability. See O'Shea v.
Littleton, 414 U.S. 488, 503 (1974). Thus, the fact that judges have been held criminally liable for violating RICO in no
way suggests that Congress intended to give civil RICO plaintiffs a remedy not available to those who sue judges under the
common law. And, as we see no other indication of Congressional intent, we decline to deprive these judges of the immunity
to which they are generally entitled by settled legal principles. **2 Mr. Di Giambattista also contends that the judges
here should not be protected by immunity because they acted in "the clear absence of all jurisdiction." The "scope
of ... jurisdiction must be construed broadly where the issue is the immunity of the judge," Stump v. Sparkman, 435 U.S.
at 356, and a judge will doff the cloak of immunity only when he conducts proceedings over which he lacks any semblance of
subject-matter jurisdiction. Thus, in a classic example offered by the Supreme Court 120 years ago, "if a probate court,
invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for
[criminal] offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily
known to its judge, his commission would afford no protection to him in the exercise of the usurped authority." Bradley
v. Fisher, 80 U.S. 335, 352 (1872). On the other hand, if a judge in a criminal court convicts a defendant of even a non-existent
crime, he maintains his immunity, because "where jurisdiction over the subject-matter is invested by law in the judge,
or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions
for his determination as any other questions involved in the case...." Id. None of the acts identified by Mr. Di Giambattista
was actionably extra- jurisdictional according to this standard. Massachusetts probate courts have general equity jurisdiction,
M.G.L. c. 215 S 6, and the removal of a trustee or executor is an exercise of such equity jurisdiction. See, e.g., Gorman
v. Stein, 1 Mass. App. Ct. 244 (1973). Thus, Judge Sullivan's rulings during the trial, whether or not correct, fell within
his purview as a probate judge, and even Judge Highgas, though not the trial judge, did not act in the "clear absence
of all jurisdiction" by hearing motions and issuing orders that affected the case, since "jurisdiction over the
subject-matter [was] invested by law ... in the court which he [held]." Bradley v. Fisher, 80 U.S. at 352. 974
F.2d 1329 (Table) ------------
California Judges
Alameda Judge Gifford
The Recorder - March 8, 2004
Alameda County Superior Court Judge Jackson Gifford may have put his gavel in jeopardy when he allegedly tried to buy sex
from a police decoy on Wednesday. After his criminal case is resolved, Gifford will likely face investigation by the Commission
on Judicial Performance, the state watchdog agency that disciplines judges. A judge convicted of a misdemeanor could face
anything from private admonishment to removal from the bench, with felonies and crimes involving moral turpitude being grounds
for removal.
California
California's Chief Justice Ronald George, in the case of Zeling v. County of Los Angeles, 02 S.O.S. 2400 writing the opinion the Courts Have No Duty To Screen For Weapons, after Eileen Zelig, who had a restraining order against
her former husband, Dr. Harry Zelig, complained three times to bailiffs he had a gun and threatened to to kill her. Zelig was shot dead in the court hallway by her ex, in front of their six year old daughter, enroute to a child
spousal support hearing.
George who now goes on at length over his fear for judicial safety, wrote that public entities weren't responsible for
screening. At the time Attorney General Bill Lockyer, supported the decision. Now, what do you suppose the Commission on Judicial
Performance would do with a complaint against the Chief Justice?
Judge Aviva Bobb. the judge Refused to talk to the child who wanted
to tell the judge she was afraid of her father.Court personnel said, (after the girls father killed her), it wasn't judicial
policy to speak to children. (Prefering instead, to hire attorneys who 'interpret' what the child says.)
the judge in the Susan Eubanks matter. Susan's ex warned a Vista judge Susan threatened to harm their children. Instead
of responding to the threat; the judge shot the messenger. The judge ordered Eric Eubanks, the father to "Supervised visitation"
as the judge thought the father might "damage" the relationship between the parent and the child.
Susan is now on death row; having killed all Four of their kids. The judge promptly sealed the case, (protecting herself),
and retired.
Unfortunately she quickly returned, and now works now as a "visiting" judge.
City Suspends Judge Arrested With Teenage Girls, Beer, Condoms
POSTED: 5:43 am EDT May 8, 2006
UPDATED: 5:55 pm EDT May 9, 2006
BARNESVILLE -- The Barnesville City Council voted Monday evening to suspend without pay a city court judge accused
of providing alcohol to two 16-year-old girls.
Judge Aurelio Enrique Abreu was arrested after visiting the girls while they were alone together in a private room
Friday, according to a statement from the Lamar County Sheriff's Office.
The statement said the 51-year-old Abreu was charged with driving under the influence, violation of oath by a public
officer, furnishing alcohol for underage consumption, contributing to the delinquency of a minor and permitting an unlicensed
person to drive, after he allegedly let the girls drive his car in a prior incident.
The sheriff's office said Abreu was arrested by SWAT team members, who hid in the house during a covert operation following
a tip
California Judge Craig S. Kamansky - now with Inland Valley Arbitration &
Mediation
San Bernardino County
In 1994, attorney Terrence Goggin, SB# 43835, filed civil rights suit, Case No. 94-7641, in Riverside
Superior Court, on behalf of Plaintiff, Jason Bumpus; a boy Judge Craig Kamansky, allegedly took under his wing.
Probation officers Mildred Kelly and Thomas Callahan were also named.
According to the suit, Jason, who was in Juvenile Hall, and often given passes to see Judge Kamansky
in closed chambers, was repeatedly sodomized by the judge.
The suit also alleged, while at Juvenile Hall, Jason's mother committed suicide under 'unusual' circumstances.
She supposedly stabbed herself in the chest.
The suit further alleged Jason was allowed to attend the funeral, after which, he also attempted suicide;
and that Judge Kamansky was allowed to remove Jason from Juvenile Hall, whereupon Jason was taken by the judge to his home.
The civil rights action settled, with the county paying for some of Judge Kamansky's defense.
Jason Bumpus committed suicide.
Ultimately, Judge Kamansky was publicly censored for one instance of bad behavior; taping over the
video tapes he earlier agreed to turn over to the Commission.
The Commission on Judicial Performance, Did Not Address the allegations leading to the erased video
tapes.
Judge Kamansky remains on the bench. We hope, not in Juvenile Court
Supreme Court declines to hear appeal in judge child porn case
LOS ANGELES The Supreme Court has declined to hear the appeal of a former California judge accused of storing child pornography
on his court computer. Without commenting, justices let stand a federal appeals court ruling in favor of prosecutors who
want to present graphic images allegedly taken from former Orange County Superior Judge Ronald Kline's computers.
A U-S attorney's spokesman says the case now returns to a Los Angeles federal court where a judge will hear a motion
by Kline's attorney who is challenging the truthfulness of a government agent in a search warrant affidavit. No date has been
set for that hearing.
Kline has pleaded innocent to charges of possessing child pornography. He also faces separate state charges of molesting
a 14-year-old boy in the late 1970s.
FLORIDA
 MERRY MORRIS CASE, Palm Beach County, Florida. Merry Morris
has been punished by the Florida family court for seeking that court's help in securing her visitation rights to her two minor
children. The punishment: $1.8 million and a warrant for her arrest when she failed to pay that amount. The Florida appellate
system dismissed her appeal. Merry is now a fugitive because she faces the very real prospect that if she submits to the arrest
warrant she will remain indefinitely incarcerated unable to comply with a contempt order she is not able to appeal.
The Florida Supreme Court, in a 4-3 decision, refused to permit her appeal of this order,
finding that she can be punished for the simple act of coming to court to seek assistance in enforcing her visitation rights
Morris v. Morris. To their credit, Justices Anstead, Pariente and Quince dissented finding that the dismissal of Morris's
appeal "potentially fosters a serious miscarriage of justice, and violates the petitioner's constitutional right to an appeal."
[05/01/06] Merry has now taken two actions. First, she has invoked the common law writ
of habeas corpus and petitioned the Florida Fourth District Court of Appeal to consider whether her arrest warrants are "intolerable
restraints� deserving of review under the law articulated at Fay v. Noia, 372 U.S. 391, 401 (1963). A copy of
that petition may be viewed here.
Additionally, Morris has filed an action in the U.S. District Court of Florida
seeking emergency declaratory relief that (i) Florida's policy of punishing parents for seeking relief from Florida's family
court to enforce visitation rights is unconstitutional and violates public policy and (ii) Florida's judge-made appellate
rules which permits a Florida appellate court to dismiss an appeal -- as the Florida Fourth District Court of Appeal did here
-- violates both Florida and Federal Constitutional guarantees to due process.
http://www.thelizlibrary.org/outrage/
Former judge charged with federal
bank fraudBy CHRISTINE ARMARIOAssociated
Press WriterTAMPA,
Fla. -- A former Florida appeals court judge whose esteemed legal career ended amid accusations that he helped a stripper
hide money from creditors is now facing a criminal charge of bank fraud. According to documents filed in Tampa federal
court on Thursday, Thomas E. Stringer agreed to buy a home in Hawaii in his name, even though the funds for the property came
from another person. Stringer has agreed to plead guilty to falsifying his mortgage application for the home. The
former 2nd District Court of Appeal judge resigned in February, months after stripper Christy Yamanaka appeared on a Tampa
television station and detailed how Stringer let her put money she made into his bank accounts so that creditors whom she
owed hundreds of thousands of dollars wouldn't know she had an income. "Due to his position, nobody bothered
him so it would be safe," Yamanaka told WFLA-TV. The Judicial Qualifications Commission, which oversees judges
in Florida, investigated and found probable cause to believe Stringer opened bank accounts in his name and let her use them
from 2003 to 2007 to hide assets. He was also accused of listing himself as the sole owner of a home in Hawaii for her and
accepting lavish gifts. The commission dropped its ethics complaint after Stringer resigned. Prosecutors say the
criminal charge filed this week is unrelated to his previous occupation as a judge. Yamanaka herself is not named in
any of the court records. According to the plea agreement, Stringer lied about the source of funds for a down payment
on a home in Ewa Beach, Hawaii. On the loan application, he said none of the money was borrowed. In fact, prosecutors say
that money came from another individual, identified only as "Jane Doe," who transferred funds into his account. In
a news release, the U.S. Attorney's Office said Stringer has cooperated with investigators and accepted responsibility
for his actions. Also, the loan was repaid in full. Stringer could face up to 30 years in federal prison for the crime.
However, because no one sustained a loss from the crime, it appears unlikely that he will be sentenced to time in prison,
prosecutors said. Prior to the allegations involving Yamanaka, Stringer was a highly respected figure in the legal community.
He was the first black graduate from Stetson University College of Law in Gulfport and was inducted into the school's
hall of fame in 2007. Before serving on the appeals court, he was a circuit court judge in the family law division.
KANSAS
We have removed the child's
name and the father's name per court order.
This mother is still
having her Constitutional rights denied and her child is still in the custody of the man who has so harmed her.
 CLAUDINE DOMBROWSKI CASE, Shawnee County, Kansas. Claudine lost custody of her baby daughter
to the man who did this, thanks to Judge James P. Buchele, who refused to permit adequate testimony at trial, shortening it to benefit his docket, and also ordered
Claudine to move back to Topeka to live near her abuser, for the sake of their "co-parenting." He is
a man with multiple criminal convictions for violent behavior (Battery, Attempted Battery, Battery of a Law Enforcement Officer,
Obstruction of Legal Process, Possession of Marijuana and violation of Open Container law), a man who has beaten and raped
Claudine multiple times before and after her divorce from him, a man who has threatened to kill her and her child.
Worse, Judge Buchele also ordered Claudine not to call the police any more without the
permission of her case manager. When Judge James Buchele retired, Judge Richard D. Anderson affirmed Buchele's previous orders, including the illegal prohibition on Claudine's being able to
call the police.
But don't blame the judges alone. Stupidity rarely works
its evil in a vaccuum. A truly egregious outrage requires that could-be good men do nothing. Guardian
ad litem Scott McKenzie deserves a substantial portion of the credit for this travesty.
I ask, how in hell can this happen in the United States of America? For more information, also see http://www.kansas.net/%7Efreepress/7-12-01-8.html
http://www.thelizlibrary.org/outrage/
Illinois
Son's
suit accuses retired judge of years of abuse
CIRCUIT COURT | Controversial ex-jurist
says DCFS report backs him July 25, 2009
A 19-year-old
Chicago man has filed a lawsuit against his father -- a retired Cook County judge -- that accuses him of sexual, physical
and psychological abuse. The civil suit accuses former Judge Lambros Kutrubis of abusing his adopted son sexually for
three years and physically and psychologically for eight years. Kutrubis, 66, denied the charges and produced a report
from the Illinois Department of Children and Family Services that recommended a finding of "unfounded" on his son's
sexual abuse claims. "There are a lot of allegations there that aren't correct,'' Kutrubis said in
an interview. Kutrubis generated plenty of controversy when he was on the bench. He was suspended without pay for six
months in 2002 for presiding over cases in which his family and in-laws stood to benefit, forging his name on tax documents,
lying to the Judicial Inquiry Board and using his position as a judge to get better treatment in cases involving himself.
Kutrubis was acquitted of charges he broke a man's cell phone during a bar fight in 2004. In the lawsuit filed recently
in Cook County Circuit Court, son John Kutrubis said his father used to get drunk and beat him. The abuse allegedly started
in 2000 after the boy's mother was kicked out of the home, the suit charges. The suit claims the boy's father
removed the doors to his bedroom and bathroom and watched him constantly. After John Kutrubis tested positive for marijuana
in 2004, his father would fondle him while he made him take twice-monthly drug tests, the suit alleges. In 2006, the
elder Kutrubis threw his son out of a car when he threatened to tell the police of the sexual abuse, the suit claims. Then
Kutrubis drove his car into his son, injuring his son's knee, the suit says. The lawsuit said that during a drug
test in 2007, the son fought back, and the father then bit his son's hand. Lambros Kutrubis was convicted of misdemeanor
domestic battery in connection with the incident, and an order of protection barred him from contact with his son. The
DCFS report, issued last year, said there was no corroboration for the charges of sexual abuse. It also said the judge never
made himself available to be interviewed. Kutrubis, who retired in 2004, said he suspects his son's civil lawsuit
may have something to do with the long-running divorce case between Kutrubis and his ex-wife. "I'd like to
get my son to reconsider these things,'' the judge said. "These are very, very strong allegations. I don't
think they can be corroborated. As a parent, I don't want to go against my son in a defamation case." The suit
seeks unspecified monetary damages.
Indiana
March 21, 2003 PUBLIC
ADMONITION OF THE HONORABLE
J. STEVEN COX JUDGE OF THE FRANKLIN CIRCUIT COURT The Indiana Commission on Judicial Qualifications, having determined that formal disciplinary charges are
warranted, issues instead this Public Admonition of the Honorable J. Steven Cox, Franklin Circuit Court. This Admonition is
pursuant to Supreme Court Admission and Discipline Rule 25 VIII E (7), and is issued with the consent of Judge Cox, who cooperated
fully with the Commission in this matter. The Commission admonishes Judge
Cox for entertaining and granting an ex parte petition for change of custody without
prior notice to the custodial parent or her counsel. The Commission concludes that Judge Cox violated Canon 3B(8) of the Code
of Judicial Conduct and that he failed to abide by Trial Rule 65(B). (See, In Re Anonymous, 729
N.E.2d 566 (Ind. 2000); Commission Advisory Opinion #1-01). K.H. and B.K.
were divorced in Franklin County, Indiana in 1996. The Court awarded custody of the parties' two children to the mother,
K.H. In 1997, K.H. and B.K. entered into a joint custodial arrangement, wherein they agreed that they would share joint custody
of their son, who would reside in Franklin County, apparently with the father’s parents. The agreement included the
following language: "The parties agree that this is a temporary arrangement and will continue so long as the [mother]
feels it is in the best interest of their son…to have this arrangement." Although
the exact details are not necessarily pertinent to the Commission’s conclusions, it appears that between 1997 and July,
2002, the parties’ son lived for a significant period of time with his paternal grandparents in Indiana, and lived for
some time, including during the first half of 2002, with his mother in Ohio. The Indiana dissolution decree had been registered
in Ohio, and, on June 28, 2002, the mother filed a proceeding in Ohio to modify the father’s child support obligations.
Throughout this time, the 1997 agreement that the custodial and living arrangement was subject to the mother’s discretion
ex parte petition for change of custody without
prior notice to the custodial parent or her counsel. The Commission concludes that Judge Cox violated Canon 3B(8) of the Code
of Judicial Conduct and that he failed to abide by Trial Rule 65(B). (See, In Re Anonymous, 729
N.E.2d 566 (Ind. 2000); Commission Advisory Opinion #1-01). K.H. and B.K.
were divorced in Franklin County, Indiana in 1996. The Court awarded custody of the parties' two children to the mother,
K.H. In 1997, K.H. and B.K. entered into a joint custodial arrangement, wherein they agreed that they would share joint custody
of their son, who would reside in Franklin County, apparently with the father’s parents. The agreement included the
following language: "The parties agree that this is a temporary arrangement and will continue so long as the [mother]
feels it is in the best interest of their son…to have this arrangement." Although
the exact details are not necessarily pertinent to the Commission’s conclusions, it appears that between 1997 and July,
2002, the parties’ son lived for a significant period of time with his paternal grandparents in Indiana, and lived for
some time, including during the first half of 2002, with his mother in Ohio. The Indiana dissolution decree had been registered
in Ohio, and, on June 28, 2002, the mother filed a proceeding in Ohio to modify the father’s child support obligations.
Throughout this time, the 1997 agreement that the custodial and living arrangement was subject to the mother’s discretion
continued in effect. In
2002, conflicts allegedly arose among the mother and the father and paternal grandparents concerning the child’s best
interests. On July 1, 2002, the father filed in the Franklin Circuit Court a Verified Petition to Modify, in which he alleged
a material change in circumstances and alleged it was in the son’s best interests to reside with the paternal grandparents,
"[Mother’s] determination of what she feels is in the best interest of such child notwithstanding." The motion
included no certificate of service. On July 8, 2002, the father, now by
counsel, filed a Petition for Emergency Custody of Child, in which he asked the court to issue an Order granting temporary
custody to the grandparents. He asserted that a "conflict has arisen as to whether the child should reside with a parent,
or the paternal grandparents with whom he has resided; an emergency exists, and the undersigned requests the Court to grant
the paternal grandparents…temporary custody of the child…pending a hearing." This petition included a certificate
of service to the mother’s Ohio attorney, showing the Petition was mailed that day. Included with the petition was an
affidavit from the grandfather alleging that the child had lived with the paternal grandparents "excepting periods of
time in early 2002 when he resided with his mother," that the child was ill and "there exists a conflict between
the child’s parents as to where the child should live, that the child "has refused to go to the residence of his
mother, and that he believed it to be in the best interest of the child to reside with the grandparents and, because the child
required treatment at an Ohio hospital, he "believes conflict at the hospital will result unless an Order is in place
as to the custody of the child pending a…hearing." Two days
later, on July 10, 2002, before the mother’s Ohio attorney received service from the Indiana attorney of the July 8
emergency petition, Judge Cox issued an Order stating that "an emergency exists" and gave custody of the child to
the paternal grandparents pending a hearing (on July 18, 2002). Prior to issuing the Order, Judge Cox first contacted the
Office of Family and Children in an effort to determine whether a CHINS proceeding was appropriate in lieu of the emergency
custody proceeding. Before granting an ex parte custody
Order, Trial Rule 65(B) requires the petitioner to state under oath the specific facts establishing the irreparable harm which
would occur if an Order is not issued before the opposing party has the opportunity to be heard,
as well as to certify what efforts at notice were made, or why notice should not occur at all. Petitioner’s motion included
neither, only a certification that the Motion was mailed that day to Ohio counsel. The issue is not only whether extraordinary
circumstances are present, but whether prior notice would result in harm. In this case, the Petitioner’s own attorney
was aware of the identity of the mother’s Ohio counsel, as well as the mother’s whereabouts, but apparently made
no effort to give prior notice. Although the attorney’s petition included the name and address of Ohio counsel, Judge
Cox made no effort to contact him, or the mother, prior to granting the request. Many facts about the child’s best interests
and the length of time the child had spent with the mother in 2002 were in dispute; had Judge Cox entertained the -3- ex
parte custody Order, Trial Rule 65(B) requires the petitioner to state under oath the specific
facts establishing the irreparable harm which would occur if an Order is not issued before the
opposing party has the opportunity to be heard, as well as to certify what efforts at notice were made, or why notice should
not occur at all. Petitioner’s motion included neither, only a certification that the Motion was mailed that day to
Ohio counsel. The issue is not only whether extraordinary circumstances are present, but whether prior notice would result
in harm. In this case, the Petitioner’s own attorney was aware of the identity of the mother’s Ohio counsel, as
well as the mother’s whereabouts, but apparently made no effort to give prior notice. Although the attorney’s
petition included the name and address of Ohio counsel, Judge Cox made no effort to contact him, or the mother, prior to granting
the request. Many facts about the child’s best interests and the length of time the child had spent with the mother
in 2002 were in dispute; had Judge Cox entertained the -3- mother’s arguments on a temporary
custody change, he may have gleened additional, or contradictory, information than that set out in the ex parte pleadings.
Judge Cox believed he was preserving the status quo. However, he was apprised of the nature of the alleged status quo by only
one side. Trial Rule 65(B) also requires the judge to define in his order
the nature of the emergency and to state why it is irreparable and why the order was granted without notice. Judge Cox deviated
from Trial Rule 65(B) in this regard as well. The Commission recognizes that Judge Cox was presented with a compelling plea
from the father and grandparents, given the serious illness facing the parties’ son and their other allegations. This
fact, however, is an equally compelling reason to have allowed the mother a chance to be heard before a modification. The Commission once again refers the Indiana bench and bar to In Re Anonymous,
729 N.E.2d 566 (Ind. 2000), to In Re Kern, 774 N.E.2d 878 (Ind. 2002), to Commission Advisory
Opinion #1-01, and to Trial Rule 65(B). Judge Cox is now admonished for deviating from the principles outlined therein. ex
parte pleadings. Judge Cox believed he was preserving the status quo. However, he was apprised
of the nature of the alleged status quo by only one side. Trial Rule 65(B)
also requires the judge to define in his order the nature of the emergency and to state why it is irreparable and why the
order was granted without notice. Judge Cox deviated from Trial Rule 65(B) in this regard as well. The Commission recognizes
that Judge Cox was presented with a compelling plea from the father and grandparents, given the serious illness facing the
parties’ son and their other allegations. This fact, however, is an equally compelling reason to have allowed the mother
a chance to be heard before a modification. The Commission once again
refers the Indiana bench and bar to In Re Anonymous, 729 N.E.2d 566 (Ind.
2000), to In Re Kern, 774 N.E.2d 878 (Ind. 2002), to Commission Advisory Opinion #1-01, and to Trial
Rule 65(B). Judge Cox is now admonished for deviating from the principles outlined therein. In
Re Anonymous, 729 N.E.2d 566 (Ind. 2000), to In Re Kern, 774 N.E.2d
878 (Ind. 2002), to Commission Advisory Opinion #1-01, and to Trial Rule 65(B). Judge Cox is now admonished for deviating
from the principles outlined therein. __________________________
Questions about this Admonition may be directed to Meg Babcock, Counsel for the Commission, at
(317) 232-4706. __________________________________________________________________
Attorneys for Respondent Attorneys
for Commission On
Hon. James Danikolas Judicial
Qualifications
Andrew V. Giorgi Meg
W. Babcock
Crown Point, Indiana Donald
R. Lundberg
Indianapolis,
Indiana
Stanley W. Jablonski
Merrillville, Indiana
__________________________________________________________________
IN THE INDIANA SUPREME COURTIN THE MATTER OF THE
) HONORABLE JAMES ) Supreme
Court Cause No. DANIKOLAS, Judge of the ) 45S00-0205-JD-281 Lake Superior Court
) __________________________________________________________________ JUDICIAL DISCIPLINARY ACTION
__________________________________________________________________
February 24, 2003
Per Curiam.
INTRODUCTION
This
matter comes before the Court as a result of a judicial disciplinary action brought by the Indiana Commission on Judicial
Qualifications (“Commission”) against the Respondent herein, James Danikolas, Judge of the Lake Superior Court.
Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25 give the Indiana Supreme Court
original jurisdiction over this matter.
After the Commission filed formal charges but
before the matter could be heard by the judges appointed to take evidence in this proceeding, the parties jointly tendered
a Statement of Circumstances and Conditional Agreement for Discipline. The Court accepted the conditional agreement. The parties
have stipulated to the following facts.
FACTS
On March 3, 2000, a dissolution decree was entered in Case No. 45D03-9801-DR-00138,
in Lake Superior Court III, dissolving the marriage of M.D. (“Wife”) and J.D. (“Husband”). At that
time, Husband owed Wife $38,400.00 in spousal maintenance and child support, and that sum was reduced to a judgment in favor
of Wife.
On June 19,
2000, Wife’s attorney, James Thiros, filed a motion for proceedings supplemental, in which he asserted that Husband
had paid nothing against the judgment. On July 19, 2000, Magistrate Costa Sakelaris presided over a hearing on the proceedings
supplemental. Husband was ordered to provide within 10 days to Mr. Thiros documentation relating to income tax returns, an
insurance policy, and his indebtedness on a vehicle. He was also ordered to begin making payments to Wife of $300.00 per month.
The Magistrate’s order was counter-signed by Respondent.
On
September 6, 2000, James Thiros filed on behalf of Wife a motion seeking a contempt citation, alleging that Husband had failed
to make any payments as ordered and had failed to provide the documents as ordered. On October 11, 2000, attorney Willie Harris
entered an appearance for Husband.
The matter ultimately
was heard by Magistrate Costa Sakelaris on January 31, 2001. Wife appeared with James Thiros, and Husband appeared with an
associate of Willie Harris, Angela Bryant. At the conclusion of the hearing, the Magistrate found Husband in contempt of court
for non-payment of support and for otherwise violating the court’s prior order. She signed an order for his incarceration
subject to a $10,000.00 escrow bond. At some point after the hearing, Respondent counter-signed the order of incarceration.
On Monday, February 5, 2001, without prior notice to Wife or
her attorney, Respondent signed an order releasing Husband without the necessity of posting bond. Before signing the order,
Respondent did not inquire of the Magistrate the basis for her incarceration order, nor did he review the file or the tape
of the January 31, 2001 hearing.
The parties’ agreement
recites:
Respondent was prompted to sign the February 5, 2001 facsimile form order sent by
an unidentified person at the Harris Law Office after a report from the office manager, Cheryl Freeman, that on January 31,
2001, the Magistrate had incarcerated Husband, who during a hearing in 2000, had to be transported by ambulance from the courtroom
to the hospital.
The
February 5, 2001 order in the Record of Judgments and Orders in the office of the Lake County Clerk originally included a
facsimile header at the top indicating the source of the order as NorthWest Engineering (used at times by the Harris Law Office).
Sometime prior to October 18, 2001, the original order was replaced by a re-typed version. The re-typed version did not show
the source of the order as NorthWest Engineering. Respondent’s original signature is on this re-typed order. No witness
or evidence has identified the source of the re-typed order or the reason for its creation and placement in the Records of
Judgments and Orders.
CONCLUSION
Subject to certain exceptions not applicable here, Canon 3B(8) of the
Code of Judicial Conduct provides:
A judge shall accord to every person who has a legal interest in a proceeding,
or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge outside the presence of the parties, concerning a pending
or impending proceeding . . .
The
parties agree that Respondent violated Canon 3B(8) when he considered and signed the faxed form order from the Harris Law
Office without prior notice to Wife’s attorney and without affording Wife an opportunity to be heard on the issue.
Respondent denies any knowledge
of the source of the re-typed order described above. He denies any knowledge of the reason for its creation and placement
in the Records of Judgments and Orders. However, in light of the fact that his signature is on the order, he accepts accountability
for the appearance of impropriety created by these circumstances.
A period of suspension
is often the appropriate sanction for violating Canon 3B(8). In the present case, however, the Judicial Qualifications Commission
has determined and requested the imposition of a public reprimand. In light of the agreement of the Commission and Respondent,
we accept this sanction. Accordingly, James Danikolas, Judge of the Lake Superior Court, is hereby reprimanded. This discipline
terminates the disciplinary proceedings relating to the circumstances of this cause. The costs of this proceeding are assessed
against Respondent.
All Justices concur. _____________________________________________________________________
Attorney for Respondent Attorneys
for The Commission On
Hon. Raymond L. Kern Judicial
Qualifications
Kevin P. McGoff Meg
W. Babcock
Indianapolis, Indiana Donald
R. Lundberg
Indianapolis,
Indiana
_____________________________________________________________________
IN THE
INDIANA SUPREME COURTIN THE MATTER OF THE ) Supreme
Court Cause Nos. HONORABLE RAYMOND ) 47S00-0105-JD-226 L. KERN, Judge
of Lawrence ) 47S00-0206-JD-333 Superior Court I
) _____________________________________________________________________ JUDICIAL
DISCIPLINARY ACTION
_____________________________________________________________________
PUBLISHED ORDER
In this order, we consolidate and finalize two separate judicial disciplinary
actions brought by the Indiana Commission on Judicial Qualifications (“Commission”) against the Respondent herein,
Raymond L. Kern. At all times relevant to these proceedings, Respondent was the elected Judge of Lawrence Superior Court I.
Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25 give the Indiana Supreme Court
original jurisdiction over these matters.
The first set of charges brought by the
Commission alleged that Respondent engaged in improper ex parte communications with a litigant in his court. Respondent
denied the allegations. We appointed three trial judges to serve as special masters. The masters’ job is to hear evidence
and to prepare a report to the Court of their factual findings and conclusions. See Ind. Admission and Discipline
Rules 25(VIII)(I), (K), and (N).
A trial was conducted. The masters
prepared a thorough report. In sum, the masters found that the following occurred.
A mother
had custody of her child. The mother was separated from her husband and a dissolution proceeding was pending. The husband
was not the child’s biological father but he apparently wanted to maintain a relationship with the child. The husband
appeared one afternoon at the child’s kindergarten class and attempted to remove the child from the school. The principal
of the school contacted mother by telephone. Based on the mother’s claim of custody, the principal refused to release
the child to the husband.
The husband then went to Respondent’s court where court staff
helped him prepare an affidavit. The affidavit made various claims, some of which were later found to be false. Even with
the false statements, the affidavit did not allege specific facts showing that immediate and irreparable injury would result
if an order was not issued before mother could be heard, as required under these circumstances by Indiana Trial Rule 65(B)(1).
Respondent nevertheless immediately prepared and issued an order granting custody to the husband. The husband returned to
the school and, armed with Respondent’s order, took the child home with him that same day. Neither the husband nor Respondent
contacted the mother about the proceeding that took place in the court.
However, alerted to
the potential problem by the call from the principal, the child’s mother immediately telephoned her attorney. The attorney
called the court and spoke to court staff and to Respondent the same afternoon the custody order was issued. The attorney
asked Respondent to take no action until the mother could be heard. Respondent did not inform the attorney that he had already
issued the custody order. Instead, later that day, Respondent faxed a copy of the affidavit and the custody order to the attorney.
The attorney filed a motion to vacate the order and set the matter for expedited hearing. Respondent did not rescind the custody
order that had been issued on an ex parte basis, and did not set the matter for a hearing for another twenty days.
Following that hearing, Respondent ordered custody returned to the mother.
The masters found
Respondent’s conduct violated Canon 3B(8) of the Code of Judicial Conduct, which generally prohibits a judge from permitting
or considering ex parte communications concerning a pending proceeding except in limited circumstances not present
in this case. They recommended that Respondent be suspended from office for a period not to exceed fifteen days. Three aggravating
circumstances were cited by the masters. First, Respondent made false statements during the course of the trial. Second, Respondent
had been previously warned by the Commission about improper ex parte contact, and was in fact the judge whose conduct
was the subject of In re Anonymous, 729 N.E.2d 566 (Ind. 2000). Third, Respondent showed no remorse and testified
at the trial that he still believed he had done the right thing.
Once
the masters’ report was filed, the matter was submitted to the Court for consideration. Respondent objected to the findings
of the masters. The Commission recommended that Respondent be removed from office for his conduct.
We
review the findings of the masters de novo and reach our own conclusions about whether misconduct has occurred and,
if so, what sanction is appropriate. See Adm. Disc. R. 25(VIII)(P)(3). However, because the Commission had recommended
removal, we suspended Respondent from office until further order of the Court. See Adm. Disc. R. 25(V)(B)(“A
judicial officer shall be suspended with pay while there is pending before the Supreme Court a recommendation for the retirement
or removal of the judicial officer.”).
While the initial proceeding
was pending before us for review, the Commission filed a second set of charges against Respondent. In this new charging complaint,
the Commission alleged that: (1) Respondent had issued misleading orders and made misleading statements in an unsuccessful
attempt to obtain payment from Lawrence County for the legal expenses he incurred in defending himself in the initial action;
(2) Respondent submitted mileage claims to Lawrence County on behalf of employees whose mileage expenses had already been
paid by the Commission; (3) Respondent continued to preside over cases involving his own creditors, even as he and his personal
lawyers were negotiating with those same creditors in the course of his bankruptcy proceeding; and that (4) Respondent made
a false statement to the Commission about the status of his finances.
Shortly
after Respondent filed his answer to the second set of charges, the parties tendered a “Conditional Agreement To Resolution
Of Charges.” Under the terms of the agreement, Respondent acknowledged misconduct in the initial proceeding and agreed
to resign as Judge of Lawrence Superior Court I effective nine days from the date the agreement was tendered. Respondent agreed
not to either seek or accept any future judicial office or to serve in any judicial capacity in Indiana. The Court accepted
the agreement, rendering moot the adjudication of the second set of charges.
Respondent
resigned and we now issue this order for publication to document the circumstances of that resignation. This resolution of
the proceedings constitutes professional discipline which must be reported to the appropriate authority should Respondent
seek admission as a lawyer in another jurisdiction. The two proceedings involving Respondent are at end. The costs of the
proceedings are assessed against Respondent.
Done at Indianapolis, Indiana, this
9th day of September, 2002.
/s/ Randall
T. Shepard
Chief
Justice of Indiana
All Justices concur.
October 17, 2005 PUBLIC ADMONITION OF COMMISSIONER
CHRISTOPHER B. HAILE The Indiana Commission on Judicial Qualifications,
having determined that formal disciplinary charges are warranted, issues instead this Public Admonition of Christopher B.
Haile, Commissioner, Marion Superior Court, Civil Division 11. This Admonition is issued pursuant to Supreme Court Admission
and Discipline Rule 25 VIII E(7) and with the consent of Commissioner Haile. Commissioner Haile cooperated fully with the
Commission in this matter and acknowledges he violated the Code of Judicial Conduct, specifically Canon 3B(8), which requires
judges to provide every person with a legal interest in a proceeding the opportunity to be heard and prohibits judges from
permitting or considering ex parte communications. In 2001, Commissioner Haile
presided over post-dissolution proceedings in Marriage of Shafer. Mr. Shafer had custody of the parties’
son, and the Commissioner approved their plan for Ms. Shafer’s summer visitation. He further ordered the parties to
arrange their summer visitation schedule for subsequent summers by May 1 of each year. On August 2, 2004,
Mr. Shafer filed a "Verified Emergency Petition for Return of Child," alleging that Ms. Shafer’s summer visitation
ended on August 1, 2004, that she was not available at her house on August 1 when he arrived to pick up their son, and that
the son had a dental appointment on the morning of August 2 and was scheduled to start school orientation on August 8, 2004.
Mr. Shafer verified he sent his Petition to Ms. Shafer by mail on August 1, 2004. On August 3, 2004,
Commissioner Haile issued an "Order for Immediate Return of Child," and ordered Greenwood, Indiana law enforcement
to enter Ms. Shafer’s residence and assist in returning the parties’ son to Mr. Shafer. Mr. Shafer regained physical
custody of their son pursuant to the order. Under certain circumstances, a judge may issue
an order of this kind without prior notice to the other party. Generally, this is permissible where the court finds a true
emergency exists and the petitioner provides reasons notice should not be required before the court
considers the petition. In this case, neither a dental appointment nor school orientation a week later constituted an emergency
justifying an ex
parte order. Additionally, Commissioner Haile was aware only of Mr. Shafer’s allegations
about the parties’ summer visitation schedule in 2004, and ordered law enforcement to take the Shafers’ son from
Ms. Shafer without the benefit of hearing her position on the agreed summer schedule. Commissioner Haile believed he was acting
in the child’s best interests; however, that is not the point. Ms. Shafer was denied her right to be heard. Commissioner
Haile is admonished for violating Canon 3B(8)of the Code of Judicial Conduct. This Commission Admonition concludes the investigation,
and Commissioner Haile will not formally be charged with ethical misconduct. _____________________________________
Questions about this Admonition may be directed to Meg Babcock, Counsel for the Commission, (317) 233-5394. Commissioner
Haile is represented by Kevin P. McGoff, (317) 848-2300. ex parte communications. In 2001, Commissioner Haile presided over post-dissolution proceedings in Marriage of Shafer. Mr. Shafer had custody of the parties’ son, and the Commissioner approved their plan for Ms. Shafer’s
summer visitation. He further ordered the parties to arrange their summer visitation schedule for subsequent summers by May
1 of each year. On August 2, 2004, Mr. Shafer filed a "Verified Emergency Petition for Return of Child,"
alleging that Ms. Shafer’s summer visitation ended on August 1, 2004, that she was not available at her house on August
1 when he arrived to pick up their son, and that the son had a dental appointment on the morning of August 2 and was scheduled
to start school orientation on August 8, 2004. Mr. Shafer verified he sent his Petition to Ms. Shafer by mail on August 1,
2004. On August 3, 2004, Commissioner Haile issued an "Order for Immediate Return of Child,"
and ordered Greenwood, Indiana law enforcement to enter Ms. Shafer’s residence and assist in returning the parties’
son to Mr. Shafer. Mr. Shafer regained physical custody of their son pursuant to the order. Under
certain circumstances, a judge may issue an order of this kind without prior notice to the other party. Generally, this is
permissible where the court finds a true emergency exists and the petitioner provides reasons notice
should not be required before the court considers the petition. In this case, neither a dental appointment nor school orientation
a week later constituted an emergency justifying an ex parte order. Additionally, Commissioner Haile was
aware only of Mr. Shafer’s allegations about the parties’ summer visitation schedule in 2004, and ordered law
enforcement to take the Shafers’ son from Ms. Shafer without the benefit of hearing her position on the agreed summer
schedule. Commissioner Haile believed he was acting in the child’s best interests; however, that is not the point. Ms.
Shafer was denied her right to be heard. Commissioner Haile is admonished for violating Canon 3B(8)of the
Code of Judicial Conduct. This Commission Admonition concludes the investigation, and Commissioner Haile will not formally
be charged with ethical misconduct. _____________________________________ Questions about this
Admonition may be directed to Meg Babcock, Counsel for the Commission, (317) 233-5394. Commissioner Haile is represented by
Kevin P. McGoff, (317) 848-2300. Marriage of Shafer. Mr. Shafer had custody
of the parties’ son, and the Commissioner approved their plan for Ms. Shafer’s summer visitation. He further ordered
the parties to arrange their summer visitation schedule for subsequent summers by May 1 of each year. On
August 2, 2004, Mr. Shafer filed a "Verified Emergency Petition for Return of Child," alleging that Ms. Shafer’s
summer visitation ended on August 1, 2004, that she was not available at her house on August 1 when he arrived to pick up
their son, and that the son had a dental appointment on the morning of August 2 and was scheduled to start school orientation
on August 8, 2004. Mr. Shafer verified he sent his Petition to Ms. Shafer by mail on August 1, 2004. On
August 3, 2004, Commissioner Haile issued an "Order for Immediate Return of Child," and ordered Greenwood,
Indiana law enforcement to enter Ms. Shafer’s residence and assist in returning the parties’ son to Mr. Shafer.
Mr. Shafer regained physical custody of their son pursuant to the order. Under certain circumstances,
a judge may issue an order of this kind without prior notice to the other party. Generally, this is permissible where the
court finds a true emergency exists and the petitioner provides reasons notice should not be required
before the court considers the petition. In this case, neither a dental appointment nor school orientation a week later constituted
an emergency justifying an ex parte order. Additionally, Commissioner Haile was aware only of Mr. Shafer’s
allegations about the parties’ summer visitation schedule in 2004, and ordered law enforcement to take the Shafers’
son from Ms. Shafer without the benefit of hearing her position on the agreed summer schedule. Commissioner Haile believed
he was acting in the child’s best interests; however, that is not the point. Ms. Shafer was denied her right to be heard.
Commissioner Haile is admonished for violating Canon 3B(8)of the Code of Judicial Conduct. This Commission
Admonition concludes the investigation, and Commissioner Haile will not formally be charged with ethical misconduct. _____________________________________ Questions about this Admonition may be directed to Meg Babcock,
Counsel for the Commission, (317) 233-5394. Commissioner Haile is represented by Kevin P. McGoff, (317) 848-2300. ex parte order. Additionally, Commissioner Haile was aware only of Mr. Shafer’s allegations about the parties’
summer visitation schedule in 2004, and ordered law enforcement to take the Shafers’ son from Ms. Shafer without the
benefit of hearing her position on the agreed summer schedule. Commissioner Haile believed he was acting in the child’s
best interests; however, that is not the point. Ms. Shafer was denied her right to be heard. Commissioner
Haile is admonished for violating Canon 3B(8)of the Code of Judicial Conduct. This Commission Admonition concludes the investigation,
and Commissioner Haile will not formally be charged with ethical misconduct. _____________________________________
Questions about this Admonition may be directed to Meg Babcock, Counsel for the Commission, (317) 233-5394. Commissioner
Haile is represented by Kevin P. McGoff, (317) 848-2300.
March 21, 2003 PUBLIC
ADMONITION OF THE HONORABLE
J. STEVEN COX JUDGE OF THE FRANKLIN CIRCUIT COURT The Indiana Commission on Judicial Qualifications, having determined that formal disciplinary charges are
warranted, issues instead this Public Admonition of the Honorable J. Steven Cox, Franklin Circuit Court. This Admonition is
pursuant to Supreme Court Admission and Discipline Rule 25 VIII E (7), and is issued with the consent of Judge Cox, who cooperated
fully with the Commission in this matter. The Commission admonishes Judge
Cox for entertaining and granting an ex parte petition for change of custody without
prior notice to the custodial parent or her counsel. The Commission concludes that Judge Cox violated Canon 3B(8) of the Code
of Judicial Conduct and that he failed to abide by Trial Rule 65(B). (See, In Re Anonymous, 729
N.E.2d 566 (Ind. 2000); Commission Advisory Opinion #1-01). K.H. and B.K.
were divorced in Franklin County, Indiana in 1996. The Court awarded custody of the parties' two children to the mother,
K.H. In 1997, K.H. and B.K. entered into a joint custodial arrangement, wherein they agreed that they would share joint custody
of their son, who would reside in Franklin County, apparently with the father’s parents. The agreement included the
following language: "The parties agree that this is a temporary arrangement and will continue so long as the [mother]
feels it is in the best interest of their son…to have this arrangement." Although
the exact details are not necessarily pertinent to the Commission’s conclusions, it appears that between 1997 and July,
2002, the parties’ son lived for a significant period of time with his paternal grandparents in Indiana, and lived for
some time, including during the first half of 2002, with his mother in Ohio. The Indiana dissolution decree had been registered
in Ohio, and, on June 28, 2002, the mother filed a proceeding in Ohio to modify the father’s child support obligations.
Throughout this time, the 1997 agreement that the custodial and living arrangement was subject to the mother’s discretion
ex parte petition for change of custody without
prior notice to the custodial parent or her counsel. The Commission concludes that Judge Cox violated Canon 3B(8) of the Code
of Judicial Conduct and that he failed to abide by Trial Rule 65(B). (See, In Re Anonymous, 729
N.E.2d 566 (Ind. 2000); Commission Advisory Opinion #1-01). K.H. and B.K.
were divorced in Franklin County, Indiana in 1996. The Court awarded custody of the parties' two children to the mother,
K.H. In 1997, K.H. and B.K. entered into a joint custodial arrangement, wherein they agreed that they would share joint custody
of their son, who would reside in Franklin County, apparently with the father’s parents. The agreement included the
following language: "The parties agree that this is a temporary arrangement and will continue so long as the [mother]
feels it is in the best interest of their son…to have this arrangement." Although
the exact details are not necessarily pertinent to the Commission’s conclusions, it appears that between 1997 and July,
2002, the parties’ son lived for a significant period of time with his paternal grandparents in Indiana, and lived for
some time, including during the first half of 2002, with his mother in Ohio. The Indiana dissolution decree had been registered
in Ohio, and, on June 28, 2002, the mother filed a proceeding in Ohio to modify the father’s child support obligations.
Throughout this time, the 1997 agreement that the custodial and living arrangement was subject to the mother’s discretion
continued in effect. In
2002, conflicts allegedly arose among the mother and the father and paternal grandparents concerning the child’s best
interests. On July 1, 2002, the father filed in the Franklin Circuit Court a Verified Petition to Modify, in which he alleged
a material change in circumstances and alleged it was in the son’s best interests to reside with the paternal grandparents,
"[Mother’s] determination of what she feels is in the best interest of such child notwithstanding." The motion
included no certificate of service. On July 8, 2002, the father, now by
counsel, filed a Petition for Emergency Custody of Child, in which he asked the court to issue an Order granting temporary
custody to the grandparents. He asserted that a "conflict has arisen as to whether the child should reside with a parent,
or the paternal grandparents with whom he has resided; an emergency exists, and the undersigned requests the Court to grant
the paternal grandparents…temporary custody of the child…pending a hearing." This petition included a certificate
of service to the mother’s Ohio attorney, showing the Petition was mailed that day. Included with the petition was an
affidavit from the grandfather alleging that the child had lived with the paternal grandparents "excepting periods of
time in early 2002 when he resided with his mother," that the child was ill and "there exists a conflict between
the child’s parents as to where the child should live, that the child "has refused to go to the residence of his
mother, and that he believed it to be in the best interest of the child to reside with the grandparents and, because the child
required treatment at an Ohio hospital, he "believes conflict at the hospital will result unless an Order is in place
as to the custody of the child pending a…hearing." Two days
later, on July 10, 2002, before the mother’s Ohio attorney received service from the Indiana attorney of the July 8
emergency petition, Judge Cox issued an Order stating that "an emergency exists" and gave custody of the child to
the paternal grandparents pending a hearing (on July 18, 2002). Prior to issuing the Order, Judge Cox first contacted the
Office of Family and Children in an effort to determine whether a CHINS proceeding was appropriate in lieu of the emergency
custody proceeding. Before granting an ex parte custody
Order, Trial Rule 65(B) requires the petitioner to state under oath the specific facts establishing the irreparable harm which
would occur if an Order is not issued before the opposing party has the opportunity to be heard,
as well as to certify what efforts at notice were made, or why notice should not occur at all. Petitioner’s motion included
neither, only a certification that the Motion was mailed that day to Ohio counsel. The issue is not only whether extraordinary
circumstances are present, but whether prior notice would result in harm. In this case, the Petitioner’s own attorney
was aware of the identity of the mother’s Ohio counsel, as well as the mother’s whereabouts, but apparently made
no effort to give prior notice. Although the attorney’s petition included the name and address of Ohio counsel, Judge
Cox made no effort to contact him, or the mother, prior to granting the request. Many facts about the child’s best interests
and the length of time the child had spent with the mother in 2002 were in dispute; had Judge Cox entertained the -3- ex
parte custody Order, Trial Rule 65(B) requires the petitioner to state under oath the specific
facts establishing the irreparable harm which would occur if an Order is not issued before the
opposing party has the opportunity to be heard, as well as to certify what efforts at notice were made, or why notice should
not occur at all. Petitioner’s motion included neither, only a certification that the Motion was mailed that day to
Ohio counsel. The issue is not only whether extraordinary circumstances are present, but whether prior notice would result
in harm. In this case, the Petitioner’s own attorney was aware of the identity of the mother’s Ohio counsel, as
well as the mother’s whereabouts, but apparently made no effort to give prior notice. Although the attorney’s
petition included the name and address of Ohio counsel, Judge Cox made no effort to contact him, or the mother, prior to granting
the request. Many facts about the child’s best interests and the length of time the child had spent with the mother
in 2002 were in dispute; had Judge Cox entertained the -3- mother’s arguments on a temporary
custody change, he may have gleened additional, or contradictory, information than that set out in the ex parte pleadings.
Judge Cox believed he was preserving the status quo. However, he was apprised of the nature of the alleged status quo by only
one side. Trial Rule 65(B) also requires the judge to define in his order
the nature of the emergency and to state why it is irreparable and why the order was granted without notice. Judge Cox deviated
from Trial Rule 65(B) in this regard as well. The Commission recognizes that Judge Cox was presented with a compelling plea
from the father and grandparents, given the serious illness facing the parties’ son and their other allegations. This
fact, however, is an equally compelling reason to have allowed the mother a chance to be heard before a modification. The Commission once again refers the Indiana bench and bar to In Re Anonymous,
729 N.E.2d 566 (Ind. 2000), to In Re Kern, 774 N.E.2d 878 (Ind. 2002), to Commission Advisory
Opinion #1-01, and to Trial Rule 65(B). Judge Cox is now admonished for deviating from the principles outlined therein. ex
parte pleadings. Judge Cox believed he was preserving the status quo. However, he was apprised
of the nature of the alleged status quo by only one side. Trial Rule 65(B)
also requires the judge to define in his order the nature of the emergency and to state why it is irreparable and why the
order was granted without notice. Judge Cox deviated from Trial Rule 65(B) in this regard as well. The Commission recognizes
that Judge Cox was presented with a compelling plea from the father and grandparents, given the serious illness facing the
parties’ son and their other allegations. This fact, however, is an equally compelling reason to have allowed the mother
a chance to be heard before a modification. The Commission once again
refers the Indiana bench and bar to In Re Anonymous, 729 N.E.2d 566 (Ind.
2000), to In Re Kern, 774 N.E.2d 878 (Ind. 2002), to Commission Advisory Opinion #1-01, and to Trial
Rule 65(B). Judge Cox is now admonished for deviating from the principles outlined therein. In
Re Anonymous, 729 N.E.2d 566 (Ind. 2000), to In Re Kern, 774 N.E.2d
878 (Ind. 2002), to Commission Advisory Opinion #1-01, and to Trial Rule 65(B). Judge Cox is now admonished for deviating
from the principles outlined therein. __________________________
Questions about this Admonition may be directed to Meg Babcock, Counsel for the Commission,
at (317) 232-4706.
__________________________________________________________________
Attorney for Respondent Attorney
for The Commission On
Hon. Douglas B. Morton Judicial
Qualifications
Martin E. Risacher Meg
W. Babcock
Noblesville, Indiana Indianapolis,
Indiana
__________________________________________________________________
IN THE INDIANA
SUPREME COURTIN THE MATTER OF THE ) HONORABLE DOUGLAS
) Supreme Court Cause No. B. MORTON, Judge of the
) 25S00-0109-JD-435 Fulton Circuit Court ) __________________________________________________________________
JUDICIAL DISCIPLINARY ACTION
__________________________________________________________________
JULY 8, 2002
Per Curiam.
INTRODUCTION
This matter comes before the Court as a result of a judicial disciplinary
action brought by the Indiana Commission on Judicial Qualifications (“Commission”) against the Respondent herein,
Douglas B. Morton, Judge of the Fulton Circuit Court. Article 7, Section 4 of the Indiana Constitution and Indiana Admission
and Discipline Rule 25 give the Indiana Supreme Court original jurisdiction over this matter.
After
the Commission filed formal charges but before the matter could be heard by the judges appointed to take evidence in this
proceeding, the parties jointly tendered a Statement of Circumstances and Conditional Agreement for Discipline. The parties
have stipulated to the following facts.
FACTS
Respondent
was serving as a special judge in a child custody matter that arose in a neighboring county. In 1996, a previous judge had
awarded custody of the parties’ children to the mother, modifying an earlier custody modification order awarding custody
of the children to their father. Prior to the 1996 custody decision, the mother had received counseling from a mental health
therapist, and, on a few occasions, she also took the children to counseling sessions with this same therapist.
The
mother had filed the motion seeking modification in April 1995. In September 1995, the therapist sent two psychological reports
to the court-appointed psychological evaluator of the children, which purported to be reports written by a clinical psychologist.
The clinical psychologist was an independent contractor with the therapist and frequently tested her patients. The psychological
reports, dated April 1995, contained information and conclusions not supportive of the father’s continued custody.
In preparation for the custody hearing, the court-appointed child custody
evaluator conducted his own evaluations of the children and obtained substantial information from various sources about the
appropriateness of both parents as custodial parents. He prepared a report for the court. In his report, he outlined all the
information available to him and referred to the contents of the psychological reports. The custody evaluator concluded, “Based
on information from interviews with all parties, collateral data reviewed, psychological testing, and home visit information,
(the mother) clearly presents a more appropriate custodial parent than does (the father).” Ultimately, as noted above,
the previous judge determined that custody should be returned to the mother.
After
losing custody of the children, the father filed another motion to modify custody. He requested a change of judge, and Respondent
assumed jurisdiction as special judge.
On June 18, 1999, the father filed,
by counsel, a Trial Rule 60(B) motion seeking to set aside the previous custody decision. In this motion, the father asserted
that the previous judge had awarded custody to the mother as a result of a fraud on the court. The allegation of fraud was
based on a claim that the signature of the clinical psychologist had been forged on the psychological reports.
Attached
to the motion was an affidavit from the clinical psychologist stating that he had no recollection of ever seeing the children,
that he did not sign the psychological reports, and that he had not prepared them. Also attached was the affidavit of the
therapist’s secretary stating that she had signed the name of the clinical psychologist to the reports at the direction
of the therapist who told the secretary that the clinical psychologist had approved doing so because of time constraints.
Father asserted that the therapist had created the reports.
In addition
to filing the motion with the clerk of the court and serving opposing counsel, the father’s attorneys hand-delivered
the motion to Respondent. When they presented Respondent with a copy of the motion, the three engaged in an ex parte conversation.
One
of the father’s attorneys told Respondent that he thought that Respondent would find the motion “very interesting
reading,” and that it included information that established a “lay down” case of forgery against the therapist.
This same attorney urged Respondent to review the motion promptly. He told Respondent that he felt that, pursuant to a protective
order relating to documents about the children, he could not refer the alleged forgery to law enforcement himself, but he
told the Respondent that he expected Respondent would feel compelled to do so. He also suggested that if Respondent was inclined
to refer the case to law enforcement, the attorney was opposed to sending it to a certain named county, and instead preferred
another county that he identified. This same attorney also told Respondent that he had concerns for the safety of the woman
who had signed the psychologist’s name to the psychological reports because he did not trust the therapist.
Respondent contacted a colleague who suggested that Respondent turn the matter over to the State Police for investigation.
The Respondent followed this advice. However, when Respondent was unsuccessful in making a referral to the local State Police
post, he decided to contact a prosecuting attorney who had previously worked with the State Police. Respondent believed that
this prosecutor would be able to advise him of the proper procedure for referral and the identity of the appropriate State
Police official to whom the referral should be made.
The prosecuting attorney contacted by Respondent
is the brother of the father’s local counsel who was present during the ex
parte communication, although not the attorney who spoke directly with Respondent. The prosecutor subsequently sent a
sample letter to Respondent for use in making the State Police referral, gratuitously adding a hand-written note stating,
“Good Hunting.” At Respondent’s request, the prosecuting attorney never advised his brother of this contact.
Thereafter, Respondent forwarded
the materials presented to him by the father’s lawyers to the State Police. Respondent did not advise either party of
the referral to the State Police.
Within a few days after being assigned
the matter, the State Police investigator met with Respondent and reviewed the entire file. Respondent declined the invitation
by the investigator to be kept informed regarding the progress of the investigation. Thereafter, a county prosecutor authorized
an immediate investigation.
The ex parte communication occurred on June 18, 1999. On June 29, 1999, Respondent scheduled the hearing on the
Trial Rule 60(B) motion for August 17, 1999. On July 7, 1999, the father filed an emergency petition seeking a temporary modification
of custody pending the Respondent’s decision on the Trial Rule 60(B) motion. The petition alleged no factual basis for
the request, nor any emergency grounds.
The referral
by Respondent to law enforcement occurred on July 12, 1999. On July 15, Respondent presided over the hearing on the emergency
custody issue, during which the father’s attorney made references to the alleged crimes by the therapist. Respondent
made no disclosure of the ex parte communication or the referral to
the police at this hearing. Respondent submits that he failed to make any disclosure because he was concerned that his disclosure
might jeopardize the investigation and that adequate time for disclosure prior to the hearing still existed.
On July 15, the Respondent granted a motion
filed by the father and continued the August 17 hearing, resetting it for August 31. Unknown to Respondent, the State Police
investigator interviewed the father’s attorneys on July 22, 1999. On August 10, the parties appeared in court on various
discovery issues, and Respondent again made no disclosures of the ex parte
conversation or the referral to the police.
Later
that day, one of the mother’s attorneys was reviewing what he believed to be the court’s official file and discovered
a sub-file captioned “(case name) Criminal Investigation,” which happened to be Respondent’s private file.
This file included the sample referral letter with the note to Respondent stating, “Good Hunting,” and the correspondence
to the State Police.
Thereafter, the mother’s attorney filed a
motion asking Respondent to disqualify himself. At the hearing on this motion, held on August 23, 1999, Respondent and both
of the father’s attorneys revealed the nature of the ex parte
communication. Respondent also explained his referral of the alleged forgeries to the State Police by stating that it was
his belief that the information warranted prompt reporting and that he was the only person in a position to report it. Respondent
did not disqualify himself from the case.
The
mother then filed, by her counsel, an original action with the Indiana Supreme Court requesting a writ of mandamus requiring
Respondent to disqualify himself. The issues regarding the conversation between the father’s lawyers and Respondent
and the details of the criminal referral were fully briefed. Respondent declined to file any response to the writ application.
Ultimately, this Court issued an order stating:
The Court has now reviewed the materials of record, and met in conference
to discuss the case. The original action is an extraordinary remedy, which is viewed with disfavor, and may not be used as
a substitute for appeal. Original Action Rule 2(E). Writs of mandamus will be issued only where the trial court has an absolute
duty to act or refrain from acting. State ex rel. Pickard v. Superior Court
of Marion County, 447 N.E.2d 584 (1983). In this instance, the Court cannot say with certainty that relator has met this
standard. On that narrow basis, the Court DENIES the writ.
Respondent
believed that the Court’s ruling meant that no adequate showing of an appearance of impropriety had been made and that
he had not violated the Code of Judicial Conduct by refusing to disqualify himself.
By
the time the hearing on the father’s motion to set aside the custody decision occurred in January 2000, the prosecutor
investigating the allegations against the therapist wrote to Respondent and stated, “I am writing to advise you formally
of the outcome of the criminal investigation, which arose from the report you made to the Indiana State Police regarding [the
child custody case]. Given the assertions made in the affidavits filed in the [child custody] case, I think this matter certainly
needed to be investigated. However, as often proves to be the case, the recollections of the various witnesses did not turn
out to be solid and reliable as the affidavits suggested.”
Before
evidence was presented at the hearing on the father’s motion to set aside the prior custody decision, Respondent denied
the therapist’s motion to intervene in the proceeding. Thereafter, the father presented his case, focusing in large
part on the psychological reports alleged to have been forged by the therapist. The clinical psychologist, who had stated
in his affidavit that he had no recollection of ever seeing the children, acknowledged at the hearing that his handwriting
was on certain testing documents relating to the children, but he insisted he had not created the psychological reports. The
therapist testified and denied the forgery.
After three and half days
of evidence, Respondent advised the parties that his inclination was to rule against the father’s motion to set aside
the custody order, having concluded that the father failed to prove that the custody modification order was obtained by fraud,
in part because the custody evaluator did not rely upon the psychological reports in recommending that custody go to the mother,
and also because the evidence did not establish that the mother was involved in the alleged scheme to defraud the prior court.
However, in rendering his decision, Respondent stated that the father had established that the psychological reports were
forged and that the therapist was the “leading candidate” in a forgery.
Respondent
stated further that he had “high hopes” the criminal investigation would remain active, which statement he submits
was made because he believed that the continued investigation of the therapist’s psychological reports had significance
to the judiciary with respect to the trustworthiness of child custody evaluations. Respondent now understands that his comments
further undermined the public faith in his impartiality as well as the faith of those with interests at stake in the custody
case.
CONCLUSION
The parties agree, as does this Court, that
Respondent violated Canon 3(B)(8) of the Code of Judicial Conduct by engaging in a conversation with the father’s attorneys,
which included commentary on the strength of the motion, insinuations that the therapist was a threat to a witness, and an
expressed desire that the Respondent initiate a criminal investigation of the therapist.
The
parties and Court also agree that Respondent violated Canon 3(B)(8) by failing to promptly report the ex parte communication.
Finally,
the parties and Court agree that Respondent should have disqualified himself because of the ex parte contact, the criminal investigation he initiated, and the failure to disclose those facts. Judicial
Canon 3(E)(1) requires a judge to disqualify if the judge’s impartiality might reasonably be questioned. The standard
is not whether the judge personally believes himself or herself to be impartial, but whether a reasonable person aware of
all the circumstances would question the judge’s impartiality. In re Edwards, 694 N.E.2d 701, 710 (Ind. 1998).
One purpose of disqualification is to preserve the parties’ and the public’s faith in the fairness of the system,
even when the judge asserts he has no personal bias.
In this case, the
combination of all of the facts indicate that a reasonable person would have doubted Respondent’s impartiality after
his failure to disclose the ex parte communication and the referral
to the State Police, and after the mother’s attorney discovered the sample letter with the “Good Hunting”
note. These facts, coupled with Respondent’s later comments on the record about his continuing suspicions of the therapist
after the determination by the prosecuting attorney not to file criminal charges, gave the appearance of partiality. The complaint
against Respondent might have been avoided by prompt disclosure of the ex parte communication and the criminal referral.
In mitigation, Respondent states, in effect, that he
sincerely but mistakenly believed that his conduct was appropriate to the situation. The parties also ask the Court to recognize
Respondent’s long and exemplary judicial service to the citizens of the State.
The
parties have further agreed, as does the Court, that the appropriate sanction for this misconduct is a public reprimand. Accordingly,
Douglas B. Morton, Judge of the Fulton Circuit Court, is hereby reprimanded. This discipline terminates the disciplinary proceedings
relating to the circumstances of this cause. The costs of this proceeding are assessed against Respondent.
All Justices concur.
Louisiana
Former
State District Judge Ronald Bodenheimer claims that he conspired with New Orleans restaurant owner Al Copeland to fix Copeland's
child custody case. The Times-Picayune reported that Copeland allegedly threatened Bodenhiemer by stating that he would have
opposition during the next election. Bodenheimer began serving a 46 month federal sentence for his role in the conspiracy
among other crimes in 2005.
New Jersey
Local Judge Convicted of Travel for Tryst With Underage Boy Faces Disbarment
Former
Judge Stephen Thompson will be behind bars at least six more years on a child-sex-crime conviction and could be civilly committed
indefinitely, but New Jersey ethics authorities still want to ensure he'll never practice law again. At a hearing on Jan. 20, Office of Attorney Ethics deputy counsel Nitza Blasini
urged the state Supreme Court to strip Thompson, 61, of his law license, as the Disciplinary Review Board recommended last
year. Blasini called Thompson's acts, which included
downloading child pornography in his chambers and traveling to Russia to have sex with an underage boy, "vile and repugnant"
and an abuse of his position of trust. "The images
of the children were very disturbing. There were acts of sexual assaults by adults, sexual assaults by other children and
sexual assaults with objects," she said, adding, "He inflicted harm on a young boy." At his criminal trial, Thompson's primary defense was that the traumatic effect
of injuries suffered during combat service in Vietnam caused his pedophiliac tendencies, and the question for the court now
is whether he suffers from a mental disability that makes disbarment necessary to protect the public. In April 2003, state police officers and investigators from the Camden County
Prosecutor's Office raided Thompson's Haddon Township home and his summer house in Avalon, N.J.The search found child
pornography, including a videotape showing him engaged in a sex act with a boy believed to have been between 13 and 16. Thompson's
passport showed he had traveled to St. Petersburg, Russia, on Sept. 20, 2002, and returned five days later. He was convicted of the crime of traveling interstate and engaging in foreign
commerce with the intent of having sex with a minor. On the child pornography possession charges, he was found not guilty
by reason of insanity. In April 2006, U.S. District Judge
Joseph Irenas sentenced Thompson to 10 years in prison, the minimum allowable under federal sentencing guidelines, and imposed
a $25,000 fine. Prosecutors did not seek a higher sentence. A
report produced at sentencing said that Bureau of Prisons mental health professionals had diagnosed Thompson as a pedophile
and that he suffered from post-traumatic stress disorder stemming from injuries, including the loss of a leg and genital mutilation,
sustained during his service in Vietnam, for which he was awarded the Purple Heart. Thompson had been a superior court judge in Camden County for 14 years when he resigned in May 2003.
Had he not, his removal would have been certain upon conviction. He was suspended from practice in 2005. Thompson's attorney, Leonard Baker, asked the court to adopt the recommendation
of a minority of the DRB for an indeterminate suspension. "Regardless
of the acts Mr. Thompson committed, they never affected his ability to practice law," said Baker, of Haddonfield, N.J.'s
Mitnick, Josselson, DePersia & Baker. "There have been no complaints about his abilities, his honesty, his competence
and his trustworthiness. "Mr. Thompson fell down
off the job. That's an important distinction. " Baker
said Thompson "will hopefully have some productive years left" after he is released. Under federal sentencing guidelines,
defendants normally must serve 85 percent of their sentences before they are eligible for parole. Baker said Thompson served heroically in Vietnam, and earned the Silver Star in
addition to the Purple Heart. "His conduct was a direct result of the injuries he received in Vietnam," he said.
Justice Barry Albin said there was "no question"
that Thompson acted heroically in combat but added, "Now the question ... is public confidence in the bar." "I think that citizens, Americans, can have confidence in his ability to
be an attorney if they know his tragic story," Baker replied. "The American people believe in second chances for
people who pay their debts to society." The case
is In the Matter of Stephen W. Thompson, D-22-08. In a message dated 1/26/2009 6:07:57 P.M. Eastern Standard Time, dgarfinkle@verizon.
net writes: A petition was set up for Marsha Kleinman, a psychologist in
NJ whose license is in jeopardy as she has become a target. She has found evidence of sexual abuse in a child
whom is a client of hers. There are people that are harassing her so the truth does not come out.
This is CLEAR evidence of the PAS scam; what happens to adults who believe and confirm the child sexual abuse. This
petition will be sent to her attorney for him to see how it can be used best for Marsha. Marsha's sister, Attorney Toby
Kleinman has presented at many Battered Mothers Custody Conferences and has been a tireless advocate for the custody
problem. The link here is on www.Care2.com and it is easy to use. Just fill in your name and address and press enter. Then click the SIGN button again. MARSHA
NEEDS TO SHOW THAT PEOPLE ARE SUPPORTING HER. It is optional to fill in a comment. The petition is below Petition to show support for Dr. Marcia Kleinman
To: Steven I. Kern, Esquire
Kern, Augustine, Conroy & Schoppman, PC 1120 Route 22 East
Bridgewater , NJ 08807
We, the undersigned have heard about the situation of your client Marcia Kleinman. We feel it is an outrage. We
are appalled that the resources of the state are going to protect a pedophile and destroy the career of a known and professional
psychologist.
To allow this outrage to continue stops all reasonable efforts by psychologists and other professionals to help
children who are victims of child abuse. Dr. Kleinman is a victim of a targeted campaign
that is going on across the country. This reflects a national backlash against victims of child abuse and
those that stand with them and seek to protect them.
Thank you in advance for your time and consideration. ************ ********* ********* ********* ********* ********* ********* *********
***** |
2005-10-11 at 6:43 am · Filed under Uncategorized by
Jim Kouri, CPP New Jersey Superior Court Judge Stephen W. Thompson, who traveled to Russia to have sex with
a teenage boy, was convicted by a federal jury last week on a charge of sexual exploitation of children. The judge also produced
a videotape of sex with a minor and then transported that videotape back to the United States. Judge
Thompson is associated with the North American Man Boy Love Association, a group which promotes sexual relations between
adult men and children. NAMBLA is currently represented by the American Civil Liberties Union (ACLU) After merely 10
hours of deliberations, the jury convicted Judge Thompson, 59, of one count of traveling in interstate and foreign commerce
with the intent of engaging in sexual conduct with a minor for the purpose of producing a visual depiction of the sexual conduct.
The jury found the defendant not guilty only by reason of insanity on count two, charging possession
of child pornography.
Defend wishes to point out this judges attormey claims
this judge was a good judge and his rulings were good and he should be allowed to work again--the jury declared he was not
guilty by reason of insnity which must have been proven by his attorney. This attorney seems to say whatever he thinks
best suits his purpose at the time. We say this judge should never have been a judge and if he ever sat on any juvenile
case or family matters he should have reclused himself. Unfortunately the rulings this judge has made will remain unless
they are overturned by another court. We ask how many victims does this judge have?? He got the minimum sentence
and we ask why??
On the count in which he was convicted, Judge Thompson faces a mandatory minimum
sentence of 10 years in federal prison. US District Judge Joseph E. Irenas, who presided over the three-week trial, remanded
the defendant to the custody of the federal Bureau of Prisons. According to trial testimony and evidence, on April
30, 2003, the State Police and Camden County Prosecutor’s Office executed search warrants at both of Thompson’s
New Jersey residences and his judicial chambers located in the Camden County Hall of Justice. During the searches,
authorities recovered 17 VHS tapes containing child pornography involving images of children engaged in sexually explicit
acts, magazines containing child pornography and child erotica; materials associated with the North American Man Boy Love
Association (NAMBLA); an 8mm film containing child pornography; various papers containing the age of consent in countries
all over the world, as well as in various states in the United States; more than 300 printed images of child pornography and
child erotica; and 57 floppy disks containing more than 6,000 thousands of images of child pornography. One of the videocassettes
found along with the video camera was played for the jury and contained what appeared to be tourist footage from a trip to
St. Petersburg, Russia, that Thompson made in September 2002. The scene then cuts to a hotel room with a young teenage boy
under the age of 18, according to expert testimony. Thompson is heard telling an unidentified man speaking in Russian to ask
the child to take off his clothes. As played for the jury, the camera appears to be placed on a piece of furniture in the
hotel room and shortly thereafter, Thompson can be seen climbing naked onto the bed with the child and engaging in sexual
acts with the child. The tape contains approximately 40 minutes of sexual footage of the child. The jury heard the testimony
of Dr. John S. O’Brien, a Philadelphia psychiatrist and prosecution witness. Dr. O’Brien testified that Thompson
did not suffer from a severe mental disease or defect and disputed Thompson’s claim that - at the time of his crimes
- he suffered from a severe form of Post Traumatic Stress Disorder stemming from war wounds and emotional trauma from his
military service in Vietnam. Dr. O’Brien did find, however, that Thompson met the diagnostic criteria for pedophilia
and testified as such. The charge in Count One carries a mandatory minimum prison sentence of 10 years to a maximum
of 20 years, and a fine of up to $250,000. In determining an actual sentence, Judge Irenas will consult the US Sentencing
Guidelines, which provide appropriate sentencing ranges that take into account the severity and characteristics of the offense
and other factors. The judge, however, is not bound by those guidelines in determining a sentence. Parole has been abolished
in the federal system. Defendants who are given custodial terms must serve nearly all that time. Jim Kouri, CPP
is currently fifth vice-president of the National Association of Chiefs of Police. He’s former chief at a New York City
housing project in Washington Heights nicknamed “Crack City” by reporters covering the drug war in the 1980s.
In addition, he served as director of public safety at a New Jersey university and director of security for several major
organizations. He’s also served on the National Drug Task Force and trained police and security officers throughout
the country. He writes for many police and security magazines including Chief of Police, Police Times, The Narc Officer and
others, and he’s a columnist for TheConservativeVoice.Com, AmericanDaily.Com, MensNewsDaily.Com, MichNews.Com, and he’s
syndicated by AXcessNews.Com. He’s appeared as on-air commentator for over 100 TV and radio news and talk shows including
Oprah, McLaughlin Report, CNN Headline News, MTV, Fox News, etc. His book Assume The Position is available at Amazon.Com,
Booksamillion.com, and can be ordered at local bookstores. If you wish to sign up for his intelligence reports, write to JimKouriReports@aol.com.
Kouri’s own website is located at http://jimkouri.us
New Mexico The case of a Las Cruces magistrate judge charged with
rape and bribery is now in the hands of a jury. Judge Reuben Galvan's defense is he was too drunk to remember the evening.
The jury will decide what happened that August night when a woman says she was raped after agreeing to have sex with Galvan
in exchange for getting her husband�s criminal case dismissed.
Galvan, who maintains that the sex was consensual, is facing a possible six years in prison and removal from the bench.
|
I never write about work, but the sordid tale of 
Over the years, I appeared before Judge Thompson on a number of motions. To the best of my knowledge and recollection...I
lost every one of them. And, that's enough about that.
