Liberty's First Crisis Book Review; Striking Similarities Between the Sedition Act and Attorney Discipline for Judicial Criticism

Earlier this month, the Indiana Supreme Court disciplined yet another attorney for writing critically of a judge.  This comes as state supreme courts and disciplinary bodies across the country continue to ignore the First Amendment and the public figure actual malice requirements of New York Times v. Sullivan in order to use professional rules to target members of the bar who dare criticize judges. 

The notion that the law allows for special protection for judges more so than other public officials actually originated in Indiana with the 1979 Matter of Lendall B. Terry case which I wrote about before.  Spelled out in more detail in subsequent cases that piggybacked on Terry is the notion that the allowing attorney criticism hurts the public by undermining confidence in the judiciary.

That argument should sound familiar to students of history.  It is EXACTLY the same argument used by the Federalists in support of the 1799 Sedition Act that led to criminal prosecutions for critics of federal officials, including Federalist President John Adams.

A newly-released book, "Liberty's First Crisis: Adams, Jefferson and the Misfits Who Saved Free Speech," written by Charles Slack details the arguments for the adoption and enforcement of the Sedition Act, passed by the Federalist-dominated Congress in 1798 and signed by Federalist President John Adams.  The Sedition Act made it a crime to "write, print, utter, or publish . . . any false, scandalous and malicious writing" with respect to the United States and federal officials, including the President and members of Congress.  Vice President Thomas Jefferson, a Democratic-Republican who strongly opposed the Sedition Act, was excluded from the Sedition Act's protections.

Slack outlines the Federalists' claim that the Act was needed to protect the reputation of federal officials and prevent criticism from the undermining the actions of United States government.  The Democratic-Republicans in Congress argued that Sedition Act was contrary to the First Amendment Free Speech Clause and that it would be used to stifle critics.  Federalist congressmen countered that the First Amendment only protected prior restraint on speech and that it did not shield speakers from the consequences for their speech.  Federalists argued that if someone was going to criticize the federal government and its officials, they would not be punished if they could prove their statements to be true.

Slack then turns to detailing the criminal prosecutions that took place under the Sedition Act.  Sedition defendants included nearly a dozen critics, including a drunk who joked about wishing President Adams would get shot through the ass and Vermont congressman Matthew Lyon who opined that the President's "unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice."

Most of the prosecutions involved defendants who had expressed critical opinions instead of factual assertions.  (Hyperbole was also apparently a concept not known then or prosecutors simply didn't care.)  Federalist prosecutors wanting to make a name for themselves leveled charges against government critics which culminated with show trials conducted by Federalist judges.  Hapless defendants were not allowed to challenge the constitutionality of the Sedition Law  (The prosecutions predated judicial review being adopted in the 1803 case Marbury v. Madison.)  The issue before the jury was generally only whether the critical statement was made.  In most prosecutions, the issue of whether the statement was false was a judicial determination and the Federalist judges appointed by Washington and Adams always found that the criticism was "false."

The Federalists' argument for the Sedition Act and how it was applied to pursue critics are very well-known to me.  As an attorney, I am intimately familiar with Disciplinary Rule 8.2 which punishes attorneys for untruthful criticism of judges.  While Federalists argue that the Sedition Act is needed to prevent criticisms to cause people to lose faith in the actions of the federal government, state supreme courts declare that Rule 8.2 is needed to prevent attorney criticism from causing people to lose faith in the judiciary.  Like the Sedition Act prosecutions, Rule 8.2 attorney discipline prosecutions inevitable devolve into punishing attorneys for the expression of opinions about judges.  As my research into Rule 8.2 prosecutions shows, 98% of the time state supreme courts find the attorney criticism or opinion about the judge is "false" and punish the attorney speaker.  In some states, they even put the burden on the attorney to prove the criticism is true.

Slack's book about the Sedition Act concludes with a discussion of free speech around the world and the history of other assaults on Free Speech, including the Sedition Act of 1918, passed during World War I, and the current assault on politically incorrect speech on college campuses.  I would highly recommend it.

American Bar Association Task Force Fails to Offer More than Marginal Reform of Law Schools, Legal Profession

The Indianapolis Business Journal last week published an excellent article last week regarding students turning away from law school and the challenges faced by those who do graduate and enter the legal profession.  This week former Indiana Supreme Court Chief Justice Randall T. Shepard pens a response that IBJ editors headlined as "Legal profession racing to navigate through storm." 

Former Indiana Chief Justice
Randall T. Shepard

Justice Shepard is chair of the Task Force on the Future of Legal Education, an American Bar Association created committee charged with the responsibility of assessing how the schools and the profession should move forward in light of the declining interest in legal education and the challenges faced by those who

Recently the Task Force issued a document entitled "Navigating Through a Storm."  In his letter, Chief Justice highlights some of those reforms contained in that report:

We’ve suggested actions that law schools, the accreditors, bar associations and courts could take to make law school and legal services more accessible and less expensive. Broadly speaking, we’ve suggested reordering financial aid, lighter regulation of law schools to foster ingenuity in curriculum, further movement toward practical education, and alternative legal education and licensing.

There are many people with their shoulder to the wheel on such reforms. Notre Dame’s courses for law students on informatics and Indiana University’s McKinney School’s one-year master’s program are excellent examples. The New York courts have changed their bar exam schedule to give law graduates a faster start into the job market, and the Washington Supreme Court has created a program for limited practice by people with shorter and inexpensive specialized education.

With all due respect to Justice Shepard,, all these ABA task form reforms do is suggest marginal changes around the edges of the legal profession. They are slight improvements at best. Off the top of my head, I can name four reforms that are much needed:

First, the ABA ought to insist that people considering law school be provided with honest statistics on what salaries and employment is within the legal profession. Instead law schools have been for years providing inflated numbers to induce people to go to law school, promoting ridiculous average first year associate salaries far from reality of $35,000 a year salaries with no benefits or new attorneys who are put on commission only...if they're lucky enough to get a job.  Unfortunately there is no meaningful audit of the employment numbers claimed by law schools.  They have been lying about those numbers for years, competing with other schools as to which could lie the most. I remember when I attempted to look into the claims and our local law school refused to provide even redacted survey responses to support their employment statistics. They did admit, however, that they "estimated" first year salaries for people not returning their surveys. I'm sure those estimates were very inflated.

Second, the ABA ought to be aggressively opposing the entry of new law schools to educate people for a profession that is grossly oversaturated. Example, the ABA and the Indiana State Bar Association has been missing in action when it comes to the establishment of Indiana Tech as this state's fifth law school. Many of the students at that school will be incurring a lifetime of debt for education in a field where there are few jobs. A recent study found that Indiana is the 7th worst state in the country for legal jobs, with 3 attorneys for every 1 open legal opening.

Third, the ABA ought to work with states on the enforcement of restrictions on non-lawyers practicing law. There are thousands of legal compliance jobs in the securities, mortgage and banking industries. These people offer advice about the law, develop written policies on legal compliance, and even attend hearings with people who are charged with violations of the law. These industries almost uniformly do not hire attorneys for these positions even though the people in those positions are clearly practicing law. While I'm not generally for barriers to entry, we in the legal profession were promised that only those who graduated from law school and passed the bar would be allowed to practice law. Yet we have plenty of non-lawyers practicing law in the aforementioned fields.

Finally, if the ABA is truly worried about student loan debt, the organization ought to be working to make student loan debt treated in bankruptcy just like any other unsecured debt. The fact is many of these law school graduates have taken on six figure debt because they were duped by false promises of entering a high paying profession. It would even the playing field if they were more easily allowed to discharge that debt in bankruptcy.

Those are meaningful reforms that truly would help the profession.  Unfortunately the ABA, like the Indiana Bar Association, has never been about anything more than protecting the status quo and the elite of the legal profession.

Indiana Disciplinary Commission Waits Nearly A Year Before Notifying Attorney Ogden of Grievance Filed by (Now) Disciplined Muncie Judge

Former Judge Dianna Bennington

Today I opened my mailbox to find a nice thick envelope from the Indiana Supreme Court Disciplinary Commission.  It was notification the Commission that now former Muncie City Judge Dianna Bennington had filed a Rule 8.2 grievance against me for two blog articles I wrote critical (here and here) and comments I had made on a newspaper website criticizing her mishandling of a contempt case involving Curtis Westbrook.  The envelope contained not only the brief letter from DC Executive Secretary Witte but copies of my blog and comments made in conjunction with the story.

Bennington subsequently was charged with 13 counts of misconduct filed by the Judicial Qualifications Commission based upon her handling of the Westbrook contempt and other cases as well as a domestic disturbance she was involved in.  Bennington recently agreed to a lifetime ban on serving as a judge in settlement of the charges.

Bennington filed her grievance against me on February 25, 2014.  In the nearly one year time since then, Witte and the Commission provided me with zero notice that a grievance had been filed against me. 

That is in keeping with the manner in which the Disciplinary Commission operates.  Former Executive Secretary Lundberg maintained a grievance against me for at least 14 years, filed against me in 1994, never informing me that the grievance had (supposedly) been dismissed in 2008.  (Despite my request for the information, the Commission has provided no proof whatsoever that it was dismissed in 2008 as claimed by the Commission.)  That grievance involved supposedly false information I had submitted with a grievance I had filed back in 1990 against a Marion County magistrate.  When, in 1994, I indicated to Gov. Bayh officials that I wanted to talk to investigators about the magistrate, Lundberg within days filed a one sentence grievance saying I had provided false information with the 1990 grievance.  I took it as an attempt to stop me from talking to investigators and to discredit what I had claimed in the 1990 grievance.

Not once in 14 years did Lundberg ever identify what I supposedly lied about or provided me with the first shred of evidence in support of his allegation.  In response, I suggested he submit the matter to the Marion County Prosecutor for a perjury prosecution if I lied.  He did.  I met with the grand jury investigator who was baffled that Lundberg had sent over the allegation against me but had no given them no evidence whatsoever in support of his one sentence allegation.  Needless to say, Lundberg's phony accusation was not even deemed worthy of submitting to a grand jury.  Years later, the magistrate was up for another judicial opening.  Within a week or so of a story appearing in the Indianapolis Star about the opening, Lundberg sent me a certified letter saying the several year dormant grievance was being docketed for investigation, which I took as another attempt by the Executive Secretary to silence and discredit me should I talk to investigators.  In the entire time, at least 14 years that the grievance pended, the Commission did no investigation.

My experience is not alone.  Court of Appeals Judge Buchanan, with whom I clerked, had a grievance pending against him for years that went nowhere.  (Judge Buchanan, along with Justice Pivarnik, had been an opponent of the appointment to the Court of Randall Shepherd, who later, as Chief Justice, exercised tremendous authority over the Disciplinary Commission that maintained the grievance against Buchanan.)  The other day, I learned of a grievance that was pending multiple years against a prominent attorney only to apparently be dismissed with the aid of Barnes & Thornburg, the law firm which many say exercises undue influence over the Disciplinary Commission. 


Michael Witte

Indeed I strongly suspect that that Barnes & Thornburg was behind my disciplinary charges.  It was only when I interviewed for a job with the Pence administration and had applied for an attorney/watchdog position with the formerly named Public Employee Retirement Fund (PERF), with which B&T's clients are very involved, that formal charges were rushed forward by the Disciplinary Commission based on never investigated grievances Witte had filed against me (after I had criticized the Commission on my blog), grievances which had sat dormant for two years.  The DC in my case made no attempt to contact me or my witnesses before filing charges.  I would add that a Barnes & Thornburg partner, against whom I had filed a grievance against and was shortly thereafter appointed to the DC, also apparently sat in on votes to file the grievance and charges against me.

Let's face It, the Indiana Supreme Court Disciplinary Commission operates as a star chamber, working under a cloak of secrecy with virtually no oversight.  Grievances should not be allowed to pend for years; baseless charges filed by the DC should be subject to summary dismissal.  Both Lundberg and Witte abused their power, with the latter now using the immense authority of the Disciplinary Commission to go after public critics and settle old scores.

The time is long past for Chief Justice Rush and the Indiana Supreme Court to order an independent investigation of the Disciplinary Commission, to conduct an audit of the secret grievance files maintained against attorneys, and reform the rules so that there is more transparency and evenhandedness in the handling of disciplinary cases.  The attorney disciplinary process in Indiana should focus first and foremost on protecting the public from dishonest attorneys, and certainly never be used to protect the Disciplinary Commission and its Executive Secretary from being exposed and criticized for their own misconduct in enforcing the rules.

Indiana Appellate Judge Smells Attorney's Briefs, Finds Odor Offensive

The Indianapolis Star reports:

Another Indiana judge is raising a stink over odor in the court.

Judge Patricia Riley

Indiana Court of Appeals Judge Patricia Riley has joined a colleague in objecting to the "repugnant stench" they say is coming from court documents handled by the Indiana Attorney General's office.

"The fact that all three of these malodorous records were handled by the same Deputy Attorney General prompts us to direct this third entreaty to the Office of the Attorney General with the demand that our request for clean, unscented records be heeded," Riley wrote in a recent case footnote.

...

Previously, Appeals Court Judge Edward Najam also expressed displeasure with an "offensive" and "unpleasant" odor similar to cigarette smoke coming from court documents handled by the attorney general's office.

Bryan Corbin, spokesman for the attorney general, said smoking is not permitted and does not happen inside the agency's offices. He said the records in the case that came before Riley were filed before Najam raised his objections and that changes have been made.

Illinois Disciplinary Board Suggests Attorney Receive Three Year Suspension for Blogging About Misconduct in Probate Court

We will have to wait to see if the Illinois Supreme Court goes along, but you might be able to add that state's judicial officials to those who think they, unlike every other government official, are entitled to special rules shielding them from criticism.  The Report and Recommendation of the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission details the facts

Sketch of JoAnne Marie Denison

and blogging activity of attorney JoAnne Marie Denison that led to a suggested three year suspension:

The statements at issue concern an adult guardianship proceeding and persons involved in that proceeding. Mary G. Sykes (Mary) was the subject of the proceeding, in the Probate Division of the Circuit Court of Cook County. 

In July 2009, one of Mary’s daughters, Carolyn Toerpe, filed a petition seeking to be appointed guardian of Mary’s person and estate. Attorney Harvey Waller then represented Toerpe. In this petition, Toerpe alleged Mary, age 90, was disabled due to dementia and memory loss. (Adm. Ex. 1 at 1). Multiple doctors had diagnosed Mary with dementia and considered her incapable of making her own personal and financial decisions. 

Shortly after Toerpe’s petition was filed, the court appointed attorney Cynthia Farenga to act as guardian ad litem (GAL) for Mary. On August 26, 2009, the court appointed attorney Adam Stern special GAL. (Both Stern and Farenga acted as GALs for Mary thereafter.The role of the GAL is to provide information to the court, assist the court in making a proper decision in the case, and represent the alleged disabled person’s best interests. While the GAL does not advocate for the alleged disabled person’s wishes, the GAL does inform the court of the person’s wishes in relation to the guardianship.  Farenga testified Mary never told her Mary wanted a lawyer. 

There was significant controversy among Mary’s relatives, which played out in the probate proceedings and other litigation. Mary’s other daughter, Gloria Sykes (Gloria), filed counter-petitions which, while alleging Mary was disabled due to dementia, sought to have someone other than Toerpe appointed guardian. Numerous issues were raised in the probate proceedings. The court’s jurisdiction was challenged, multiple times, based on the sufficiency of the notice given to Mary and her sisters of the guardianship proceedings. Those challenges were unsuccessful, despite multiple appeals by Gloria. Gloria attended court on multiple occasions, as did other relatives. Disagreements over visitation with Mary began shortly after the probate case was filed. From the perspective of some relatives, Toerpe was isolating Mary against her will and improperly obstructing efforts to visit with Mary. 

In December 2009, the probate court found Mary incompetent and appointed Toerpe her guardian. Before this order was entered, the court heard evidence as to the respective plans of Toerpe and Gloria for Mary’s care and gave relatives, including Gloria, the opportunity to question Toerpe about her care plan. 

After the guardianship order was entered, disputes continued. Attorney Peter Schmiedel began representing Toerpe. Many of the disputes concerned emotionally charged issues. There were ongoing disagreements about the nature and quality of care Mary was receiving. Accusations were made that Toerpe and her husband abused and neglected Mary. Visitation remained an ongoing, contentious issue. Two incidents exemplify the situation. Mary’s 84-year-old sister, Yolanda Bakken (Yolanda), described going to Toerpe’s home to visit Mary and being shoved by Toerpe and Toerpe’s husband.  In a separate incident in June 2013, Naperville police were called, by Toerpe or at her request, when Gloria and other persons, including Respondent, went to the assisted living facility where Mary was residing.

As noted above, the family was involved in other litigation. That litigation included actions to partition a joint tenancy between Mary and Gloria as to one house and to evict Gloria from another house, owned by a trust of which Toerpe was trustee.  In addition, in June 2009, Mary had accused Toerpe of financially exploiting her and filed a petition for an order of protection. Some of Mary’s relatives believed Toerpe’s petition for guardianship was filed in response to the petition for order of protection.  

There was also controversy concerning another lawsuit (the Lumbermen’s case). The Lumbermen’s case involved the house Mary and Gloria owned in joint tenancy (the brown house). Gloria, who had been living in the brown house, alleged she contracted cancer due to conditions in the home. The brown house had been seriously damaged by mold. The trust owned Mary’s home (the white house). In August 2002, Gloria had moved into the white house and was living there with Mary. Gloria described a very close relationship between herself and Mary. 

The Lumbermen’s case settled in October 2008, for approximately $1.3 million. Of that amount, approximately $700,000 was to be paid to Mary and Gloria. In October 2008, Mary executed a document (the Apportionment Agreement), which purportedly relinquished her interests in the Lumbermen’s settlement to Gloria. Respondent notarized Mary’s signature on the Apportionment Agreement. Conflicting evidence was presented as to whether or not Respondent had any further involvement in the Lumbermen’s case or with the Apportionment Agreement.

In the probate proceedings, issues were raised as to Mary’s mental capacity to execute the Apportionment Agreement and what, if any, portion of the Lumbermen’s settlement proceeds might belong to Mary. In November 2009, the probate court entered an order freezing assets in an account held by Gloria, until these issues could be resolved. Additional issues were raised as to the manner in which Gloria had handled settlement proceeds, her compliance with court orders and whether Gloria owed Mary any additional sums for the mortgage. These matters became the subject of significant controversy. In 2013, after a contested evidentiary hearing, the probate court found Mary lacked the mental capacity to execute the Apportionment Agreement and set that agreement aside. However, the court still had to determine how much of the proceeds belonged to Mary.

Respondent had attempted to file her appearance for Gloria in the probate case, in November 2009. Prior counsel had withdrawn. (Tr. 1684; Adm. Ex. 1 at 5). The GALs objected, on the grounds Respondent might be called as a witness, particularly as to Mary’s mental capacity to execute the Apportionment Agreement. On December 7, 2009, the probate court issued an order disqualifying Respondent.  

Denison, who was not allowed to represent Mary Sykes, then began blogging about the case in November of 2011:

The Complaint identifies ten specific blog posts, made between April 19, 2012 and August 21, 2012, to support the allegations of misconduct. Respondent admitted the Complaint accurately stated these blog posts.  Posts on the blog from some of those dates include submissions attributed to persons other than Respondent. However, as to all of the specific language charged in the Complaint, either Respondent admitted authoring the language  or way the language appears on the blog, e.g. above Respondent’s name, indicates she did so. The posts specifically identified in the Complaint are set out below.  

The first post is from an entry on April 19, 2012, which suggests Mary had a large estate but “has been fleeced of her home, about a million in gold coins?as well as other property the family can and would verify if given a chance.”

The language at issue appears in the context of statements that Respondent and Ditkowsky have been working on the blog, in an effort to inform others of the situation involving Mary. The charged language reads those attorneys who will churn fees at hundreds of dollars per hour-want us silenced. They apparently have a lot of clout in Probate and even with the ARDC?

And I would like to note (JMD) that if you follow the money trail, it leads directly to the Plenary Guardian, the GAL’s [sic] Adam Stern and Cynthia Farenga, and the Guardian’s attorney’s [sic] Harvey Waller and Peter Schmeidel/Dorothy Soehlig!   

Schmiedel has a colleague named Deborah Soehlig. (Tr. 616). Respondent’s initials are JMD.  

The second post is an entry on April 25, 2012. After referencing a separate case which, allegedly, included circumstances like those in the Sykes case, the charged language stated: “(a)s in the Sykes case, currently the GAL is adding other attorneys to the case to outlawyer the daughter and churn the feeding frenzy [sic] – all with court connected lawyers.” 

The third post (the Black post) is dated April 28, 2012. This entry purports to be from a facsimile transmission to Lea Black, the attorney who initially represented the Administrator in these proceedings.  In the Black post, Respondent referred to the Sykes case and stated there was a clear pattern “to exclude, snub, snob and ignore any pleading that Gloria filed,” while granting, “anything offered either orally or by mere hint of suggestion by the tortfeasors,” Stern, Farenga and Schmiedel, “without findings, no hearing, no discussion, and often without any written Motion or Notice of Motion.”  The Black post continued with the following language:

Isn’t this the classic case of corruption?…   

The judge in the Probate Court declared in August of 2011 she did not have to follow court rules or Illinois Statutes pertaining to Civil Procedure in Court-she was exempt. Then she grants this privilege to the court officer miscreants-and now it is clear for the world to see this is a continuing pattern, ala Dorothy Brown who has finally provided some meager form of computerization to the Circuit Courts.

Why aren’t the Circuit Courts of Cook County computerized when the federal courts have been computerized since 200? 1) a thousand incompetent and computer illiterate patronage workers would have to be fired in a single day ? and 2) politically connected judges and their puppet attorneys (the GAL’s [sic]) would be exposed for what they are: money grubbing, family strife churning leeches that create nothing but pain and misery in a family while swiping free parking money out of a well funded estate.

The fourth post is dated May 24, 2012. To put the charged language in context, the blog post from that date began with the heading, authored by Respondent: “(f)rom Ken Ditkowsky – Reasons for a number of agencies to get involved and investigate.” (Tr. 1573; Adm. Ex. 23 at 7). Text followed, apparently authored by Ditkowsky, which complained of the manner in which Mary was found incompetent, called for an investigation and stated the determination Mary was incompetent was “a foregone conclusion orchestrated by an agreement” between the GALs and the guardian’s attorney. (Adm. Ex. 23 at 7). This theme continued in text posted by Respondent, which included comments that honest attorneys, “the ones not making a profit from corruption,” who report their suspicions of theft by “the court and the authorities,” become the subject of groundless complaints, while “the miscreants dance away with impunity.” The language charged in the Complaint was part of the text Respondent posted regarding the Sykes case. That language stated: “(a)gain, the entire case was railroaded, the file was peppered with packs of lies, and these lies were rubber stamped by (the GALs) and the Probate Court in a ?done deal.’ Scary.”    

The fifth post, from June 1, 2012, asserted a transcript, to which the blog provided a link, shows Judge Stuart side stepping the major issues in the case. The language at issue appeared in one of three postscripts, following Respondent’s name at the conclusion of the post. That language read:  

?from this transcript, it is clear the judge is talking to the miscreant attys in the hallway, Scott and Gloria always see them coming from behind the judge’s private areas, and it is clear that the court is being spoonfed BS law by atty miscreants rather than having to actually read cases and make decisions based upon briefing schedules. 

The sixth post, from July 7, 2012, consisted of a letter from Respondent to Kevin Connelly at the Office of the Sheriff, Circuit Court of Cook County. In this letter Respondent suggested corruption in the Sykes case for multiple reasons, including lack of jurisdiction, the court and GALs acting without authority and documents missing from the court file. Respondent also suggested corruption was the reason she was not permitted to use a laptop in probate court, particularly in relation to the Sykes case. The letter stated “(a)ny day now this will blow and it may well create a scandal more far reaching than Greylord.” (Adm. Ex. 25 at 2). Respondent’s letter included the statements at issue, i.e.:  

I am an attorney running a blog on http://www.marygsykes.com/, which appears to be a very corrupt case, with corruption reaching to the highest levels, including the ARDC?. 

So, just let me know if you are on the side of cleaning up the courts or if you are a SOP patronage worker that fears every day to be thrown under the bus for whistleblowing. You get a choice today. I think Judge Evans made his choice. Too bad it’s now permanently on the internet tagged under “corruption.”

The seventh post was language from the Table of Torts. The language charged is the language contained in the Table of Torts post, set out above. 

The eighth item charged involved a document posted on the blog which purported to be a motion by Farenga to dismiss the Sykes probate case for lack of jurisdiction (motion to dismiss post). The motion listed Farenga as the preparer. This post included a notice, suggesting Farenga intended to present the motion to the court. (Adm. Ex. 26 at 15-17). Farenga did not prepare these documents, which were contrary to her position in the Sykes case, or authorize their preparation. Respondent prepared these documents. 

The ninth post charged consisted of a facsimile transmission of correspondence from Respondent to Diane Saltoun, at the office of the Illinois Attorney General. The blog stated Respondent’s fax to Saltoun was accompanied by her “famous” Table of Torts. In her correspondence, Respondent stated: 

(w)hile the above case has a long, long history, much of which is documented on a blog to be found at http://www.marygsykes.com, the reality of the situation is that this probate proceeding boils down to garden variety theft, embezzlement, malpractice and malfeasance by attorneys and the court?

Please look at the attached and all the information I will fax you shortly. This is a case that could be bigger than Greylord-what is being done to deprive grandma and grandpa of their civil rights and how the Probate court (routinely) operates. 

The tenth post was an entry from August 21, 2012, entitled “(a)ltered court orders, fabricating attorneys, the sage continues.” After referring to orders in the probate case, with links to two of those orders, the language charged appeared. That language read:

(n)othing like the time honored true fashion of if you don’t like what the order said when the parties agreed, just get the judge behind closed doors and get her to alter it. And do it messily and have two ?entered’ stamps on it. 

Even a grammar school child can forge a parental note with more skill and care than the minimal amount which was taken in this matter to cover up the tracks of their torts by these bumbling miscreants!

The Hearing Board found that Denison had made statements concerning the integrity of the judges, knowing they were false or with reckless disregard for their truth or falsity, and engaged in dishonest conduct and conduct prejudicial to the administration of justice.   Once again, it appears that an attorney disciplinary board is taking the position that the judges are entitled to more protection from criticism than every other public official.  As discussed extensively on this blog, despite what state supreme courts would like to think, even attorney criticism is protected by the actual malice standard of New York Times v. Sullivan.

Federal Court Strikes Down How Judges are Elected in Marion County; Is Judicial Slating the Next to Fall?

Federal District Court Judge Richard Young yesterday handed down an opinion striking down Marion County's process for electing judges as a violation of the First Amendment.

That process involved Republicans and Democrats each nominating exactly half the candidates and all the candidates so nominated automatically winning the general election. Thus, if you were a voter who only cast a ballot in the general election, you'd have no say in the selection of Marion County judges.

The decision is likely to be appealed to the Seventh Circuit. I think, however, it is unlikely to be overturned.  If it is not overturned that means the Indiana General Assembly will need to revisit the issue of how the judges are selected in Marion County.  The legislature can go to an election process in which all judges are elected county-wide which would likely result in all Marion County judges being Democrats.  That's not likely to happen though with a Republican legislature and a Republican governor. Or the General Assembly can opt to elect judges by districts or install a so-called merit system which has been done in some counties.  Unfortunately, merit systems does not eliminate the inevitable politics involved in judicial selection.  It often just puts those politics behind closed doors.

Besides the issue of electing Marion County judges in the general election, you have the related issue of judicial slating in Marion County, which involves the payment of hefty fees to party bosses in order to receive the party organization's endorsement.   In January of 2013, I reviewed campaign reports and summarized those payments as follows:

To get slated, Republican judge candidates had to pony up $13,100 apiece before the slating convention.  (Democrats had to put up a similar amount.)  Following the election, the Republican judge candidates are to pony up another $10,000 apiece.

In 1992, the JQC had opined that the practice of paying mandatory slating fees was a violation of the Judicial Code of Conduct.  Twenty years later I asked the JQC to revisit in light of the fact that the payment of these fees as evidenced by twenty years of history showed they were mandatory and thus a violation of the Judicial Code of Conduct.  The JCQ in a letter dated April 2012, confirmed its earlier opinion and then reiterated a set of factors it would look at to determine if the fees paid were mandatory:

While not an exhaustive list, some of the factors the Commission believes are important to evaluate when considering whether a payment is voluntary include the timing of the payment, particularly if it must be paid by a certain time, such as before a slating convention, whether anyone from the political party communicated to the judicial candidate that the payment is expected, and whether the amount contributed by all judicial candidates during an election cycle is the same (assuming o further explanation for the coincidence.

In a piece I wrote in May of 2012, I outlined how those factors compared to what happened during the judicial slating that took place that year:

• All of the endorsed candidates paid a $12,000 slating fee  (I found out later that there was an additional fee paid that had to be paid after the election.)
• All paid the slating fee before the slating convention.
• The party communicated to the candidates the amount of the slating fee before the slating convention. 
• Judicial candidates, like candidates for other offices, were not provided a list of voters at the slating convention until the slating fee was paid.
• The slating fee equals 10% of a judges annual salary. Slating fees always are 10% of the annual salary of the office that is sought.
• The party, like with all slating contests, refunds 80% of the slating fee for judges if they're not slated and do not run in the primary.  If they run in the primary, the party keeps 100% of the $12,000.  If it were a voluntary political contribution, why would they ever refund the money?

I understand from very good sources that a complaint against the Marion County slating process remains pending before the JQC and was put on hold pending the outcome of yesterday's case.  Hopefully the JCQ will now find the slating fees that have been paid to be a violation of the Judicial Code and have that decision ratified by the Indiana Supreme Court.  I think that is quite likely coming down the road.

Meanwhile, in light of yesterday's decision, the Indianapolis Bar Association issued a statement yesterday, published on the Indiana Law Blog website:

The Indianapolis Bar Association (“IndyBar”) is reviewing Judge Young’s decision holding unconstitutional Marion County’s current system for selecting judges. For more than twenty years, the IndyBar has taken an active interest in the best methods of selecting judges in Marion County. Through its Attorneys for an Independent Bench (AIB) Committee, the IndyBar intends to offer its assistance in crafting a remedy to address the Judge’s decision. Marion County has been well served by its excellent judges over the years, and inclusive engagement of all interested parties in creating a new judicial selection method will ensure that continues.

You have to remember the Indianapolis Bar Association has been silent on any sort of meaningful reform of the selection process for Marion County Judges, has refused to condemn slating, including the payment of slating fees in violation of ethical rules, and has actively provided cover for candidates handpicked by party bosses through the use of an easily manipulated survey process.  And now the Indianapolis Bar Association wants to be a player in reforming the system?

Note: Special thanks to Indiana Law Blog for providing the link to the Indianapolis Bar Association statement and Judge Young's opinion.

Goodbye to the Practice of Law; Indiana Disciplinary Commission Incurred More Expenses Prosecuting Ogden Than Any Other Attorney

When I protested earlier to the Indiana Supreme Court that the Disciplinary Commission deliberately ran up an expense bill on me to force me out of practicing law, I don't think the justices believed me.  So I decided to undergo the painstaking process of going through the docket of each disciplinary case over the last two years to determine how much in expenses each disciplined attorney was ordered to pay.  An order often detailed in a docket entry contains the breakdown of the following types expenses attorneys in disciplinary cases are generally ordered to pay: 

Disciplinary Commission - investigation expenses.
Clerk - court costs
Supreme Court - hearing officer and court reporter expenses.

For the attorneys with the most expenses, I documented the discipline the attorney ended up receiving. There were a few occasions when the dollar amount on expenses was not spelled out or there did not appear to be any mention of expenses in the docket.  It should also be noted that the designation WAR means suspended "with automatic readmission" and WOAR means "without automatic readmission," i.e. attorneys have to reapply for readmission and get approval.  For many attorneys a WOAR designation means they will neer practice law again.

Upon completion of my survey, it turns out my instincts were right.  The Commission ran up more expenses prosecuting me for an email than any other attorney.

Name	DC Inv. Exp.	Clerk-Court Costs	SCT -HO & Ct Rep.	Total	Result
Ogden, Paul K.	5360.34	250	14813.20	20423.50	Susp 30 days WAR
Geller, Steven B.	8465.48	250	7740	16455.50	Disbarred
Haigh, Christopher E.	5549.75	250	9880.2	15680.00	Disbarred
Usher IV, Arthur J.	7026.69	250	4380	11656.70	Susp 3 years WOAR
Denney, Louis W.	4717.1	250	5350	10317.10	Susp 3 years WOAR
Benson, Craig R.	2749.04	250	6871.08	9870.12	Susp 180 days WOAR
Dempsey, Gordon B.	3265.73	250	4125.16	7640.89	Susp 3 years WOAR
Stern, Patrick H	3527.71	250	1933.05	5710.76	Susp 18 mos WOAR
Smith, Joseph Stork	2463.83	250	2008.3	4722.13	Disbarred
Alexander, Michael	243.63	250	3850	4343.63	Susp 60 days WAR
Schalk, David E.	1096.64	250	2953.84	4300.48	Susp 9 mos WOAR
Snulligan, Octavia F.	1527.16	250	2445.35	4222.51	Susp 30 Days WOAR
Coleman, Jesse L.	1003.9	250	2075	3328.90	Not Reviewed
Ross, Roberta	722.63	250	1775	2747.63	Not Reviewed
Cole, Scott C.	2079.2	250	160	2489.20	Not Reviewed
Atkins, Trezanay M.	306.96	250	1910	2466.96	Not Reviewed
Baker, Patrick V.	2250.81	0	0	2250.81	Not Reviewed
Collins, Robert L.	489	250	1425	2164	Not Reviewed
Frazier, Ronald W.	1863.09	250	0	2113.09	Not Reviewed
McClure, Alfred	1092.39	250	440	1782.39	Not Reviewed
Clark, Timothy V.	937.63	250	450	1637.63	Not Reviewed
Heck, Jeffrey D.	688.73	250	690	1628.73	Not Reviewed
Beal, Shane E.	1197.39	250	0	1447.39	Not Reviewed
Kahn, Stanley	1096.8	250	0	1346.8	Not Reviewed
Voils, Alex R.	1082.55	250	0	1332.55	Not Reviewed
Weldy, Ronald E.	982.27	250	0	1232.27	Not Reviewed
Kinnard, Terrence	811.46	250	0	1061.46	Not Reviewed
Jones, Carl C.	679.8	250	0	929.80	Not Reviewed
Devlin, Maureen	210	250	420	880.00	Not Reviewed
Suarez, Edward J. Martinez	540	250	0	790.00	Not Reviewed
Brejensky, Steve L.	36.18	250	458.35	744.53	Not Reviewed
Potthast, Lindsay C.	0	250	469.25	719.25	Not Reviewed
Woodmansee, Todd A.	193.91	250	240	683.91	Not Reviewed
Holcomb Jr., Noah	21.85	250	350	621.85	Not Reviewed
Schrems, Patrick M.	71.2	100	417.64	588.84	Not Reviewed
Randolph, Lonnie M.	133.4	250	185	568.40	Not Reviewed
Criss, Jon A.	0	250	300	550	Not Reviewed
Godshalk, Randy A.	0	250	300	550	Not Reviewed
Wallace III, William R.	288.28	250	0	538.28	Not Reviewed
Stiles, Randall B.	530.55	0	0	530.55	Not Reviewed
Johnson, Amanda	524.44	0	0	524.44	Not Reviewed
Raventos, Peter S.	524.44	0	0	524.44	Not Reviewed
Sokolowski, David J.	524.44	0	0	524.44	Not Reviewed
Stiles, Randall B.	524.44	0	0	524.44	Not Reviewed
Stuard, F. Scott	524.44	0	0	524.44	Not Reviewed
Stuard, F. Scott	524.44	0	0	524.44	Not Reviewed
Weber, Brad J.	524.44	0	0	524.44	Not Reviewed
Roby, Veronica M.	523.72	0	0	523.72	Not Reviewed
Stuard, F. Scott	518.33	0	0	518.33	Not Reviewed
Stoops, Eldon E.	0	250	267.42	517.42	Not Reviewed
Oulette, Steven J.	512.96	0	0	512.96	Not Reviewed
Heck, Jeffrey D.	512.22	0	0	512.22	Not Reviewed
Johnson, Elton D.	512.22	0	0	512.22	Not Reviewed
Lipsky, Michael L.	512.22	0	0	512.22	Not Reviewed
Snulligan, Octavia F.	511.9	0	0	511.90	Not Reviewed
Brenman, Jeremy S.	511.5	0	0	511.50	Not Reviewed
Brenman, Jeremy S.	511.5	0	0	511.50	Not Reviewed
Johnson, John A.	506.11	0	0	506.11	Not Reviewed
Nelson, John W.	0	250	250	500	Not Reviewed
Robson, Ray W.	0	250	250	500	Not Reviewed
Joyce, John M.	38.63	250	210	498.63	Not Reviewed
Followell, Douglas S.	0	100	381	481	Not Reviewed
Auger, Jennifer J.	0	250	155	405	Not Reviewed
Auger, Michael R.	0	250	155	405	Not Reviewed
Stoops, Eldon E.	0	250	143.52	393.52	Not Reviewed
Barker, Joseph B.	140.5	250	0	390.50	Not Reviewed
Aguilar, Marisa	0	250	140	390	Not Reviewed
Hittle, Lori Ann	0	250	104	354	Not Reviewed
Okanlami, Olubunmi O.	0	250	100	350	Not Reviewed
May, Dan J.	91.52	250	0	341.52	Not Reviewed
Hogan, Frank W.	49.59	250	0	299.59	Not Reviewed
Brenman, Jeremy S.	0	250	0	250	Not Reviewed
Carr, Bruce A.	0	250	0	250	Not Reviewed
Compton, Julia N.	0	250	0	250	Not Reviewed
Corbitt, David E.	0	250	0	250	Not Reviewed
Corcella, Ellen M.	0	250	0	250	Not Reviewed
Crawford, Lisa M.	0	250	0	250	Not Reviewed
Eckert, John Carroll	0	250	0	250	Not Reviewed
Eyster, Randy C.	0	250	0	250	Not Reviewed
Freeman, Timothy	0	250	0	250	Not Reviewed
Garcia Jr., Juan Carlos	0	250	0	250	Not Reviewed
Hedges, Christopher c.	0	250	0	250	Not Reviewed
Holajter, Leonard M.	0	250	0	250	Not Reviewed
Holesinger, Clark W.	0	250	0	250	Not Reviewed
Hughes, Mark J.	0	250	0	250	Not Reviewed
Janeway, Kathryn C.	0	250	0	250	Not Reviewed
Kelly, Hubert E.	0	250	0	250	Not Reviewed
Kendall, Michael C.	0	250	0	250	Not Reviewed
Kotz, James C.	0	250	0	250	Not Reviewed
Kotz, James C.	0	250	0	250	Not Reviewed
McGillvrray, Roderick D.	0	250	0	250	Not Reviewed
Mitchner, Kent D.	0	250	0	250	Not Reviewed
Mullisn, Earl C. Jr.	0	250	0	250	Not Reviewed
Murphy, Benjamen W.	0	250	0	250	Not Reviewed
Page, Paul J.	0	250	0	250	Not Reviewed
Rees, David F.	0	250	0	250	Not Reviewed
Scott, David J.	0	250	0	250	Not Reviewed
Smith III, Jess, M	0	250	0	250	Not Reviewed
Storms, Scott	0	250	0	250	Not Reviewed
Truman, Karl N.	0	250	0	250	Not Reviewed
Watson, Mark E.	0	250	0	250	Not Reviewed
Wolfe, Stephen P.	0	250	0	250	Not Reviewed
Wyser, David	0	250	0	250	Not Reviewed
Garvin, Mark A.	115	0	0	115	Not Reviewed

I suspect that the Court thought I was the one who unnecessarily ran up the expense bill.  In reality it was the Commission that did that, no doubt as part of a deliberate strategy.  Evidence?   The Commission wouldn't even respond to my settlement offer (which was nearly the same as the 30 day suspension I ended up receiving) and refused to stipulate to facts even though probably 98% of facts could have been stipulated to.  Instead of a stipulation, the Commission insisted on presenting evidence at an 11 1/2 hour hearing.  The courtroom was filled with DC staffers who apparently were there to assist or watch the spectacle of the Commission's leading critic be put on trial.   Of course, the Commission undoubtedly knew I would be stuck with the bill for the court reporter and the hearing officer.    The Commission undoubtedly also knew I would have to pay for the considerable amount of time the hearing officer  spent preparing the 85 page report, which had very few citations to the record and which contained reasoning that appeared to be completely rejected by the Court.

After receiving the Commission's expense bill following the Court's decision, I asked the Court to reconsider in light of how little of the case the Commission had won and presented a sworn statement that the Commission had never talked to me or my witnesses during the investigatory stage, that I had offered a reasonable settlement offer that would have allowed the proceeding to be resolved early on, and that we had attempted to stipulate to facts to avoid a lengthy trial but the Commission refused.  In short, the vast majority of the expenses were driven by decisions the Commission had made.  I also also asked that the Commission be ordered to itemize the expenses which is expressly required by the rules.

In response, the Commission's attorney, as he had done in the complaint falsely representing to the Court that I had engaged in an ex parte communication in a second charge tossed out by the Court, simply started making stuff up in court filings.  I counted at least three outright fabrications.  The DC attorney claimed that the Commission had been in contact with me following my response to the grievances.  It was a lie.  It never happened.  Second, the DC attorney reported to the Court that the Commission had asked for a settlement meeting with me and that that meeting lasted three hours.  Again, the DC's attorney lied.  It never happened.   Third, the Commission's attorney in the Response reported to the Court that I refused to admit to a rule violation as part of settlement.  Again, another lie.  In the written settlement offer I made, which the Commission didn't respond to, I expressly agreed to admit to a violation.

The Commission's attorney never offered any proof whatsoever in support of these three claims and apparently didn't want to make his false statements the form of an affidavit.  Nonetheless, there is still a disciplinary rule that requires that attorneys show candor to the Court.  I don't believe Disciplinary Commission attorneys practicing before the Indiana Supreme Court should be exempted from following that rule.  Attorneys being disciplined and attorneys prosecuting discipline, should be held to the same ethical standards.

Nonetheless, the Indiana Supreme Court refused to reconsider the expense bill (and didn't require an itemization) leaving me with no choice but to walk away from practicing law.  On Wednesday I filed paperwork to put my license in "inactive" status.

So I, an attorney who had never been disciplined in my over 26 years of practicing law, lost my right to practice law in the State of Indiana because I sent a private email criticizing a judge in which I accidentally got a couple minor facts wrong.  (Never mind NY Times v. Sullivan which says my speech was protected by the First Amendment.)  My hope is that my case FINALLY causes the Indiana Supreme Court to take some responsibility for the too often outrageous conduct of the Disciplinary Commission, which is an arm of the Court, and adopt long needed reforms in how the Commission operates, including more transparency and accountability.  Indiana attorneys and the public deserve better.