Thursday, August 28, 2014

Judge's Actions Holding Kokomo Mayor in Contempt Raises Issues Regarding His Abuse of Contempt Power, Lack of Temperament

Over at Masson's Blog, attorney Doug Masson beat me to the punch on writing an article questioning whether Howard County Superior Court Judge William Menges overstepped his legal authority in holding Kokomo Mayor Greg Goodnight in contempt over the issue of construction materials supposedly blocking courthouse access:    WISH-TV recaps what happened:
William Menges, Judge
Howard County Superior Court #1
Outside the Howard County Courthouse there is construction underway on the Industrial Heritage Trail.  The construction has at times forced changes in the normal delivery of jail inmates to the courthouse.

Then, on Tuesday afternoon construction materials were placed in the driveway blocking
access.  To Judge Menges that was an act of contempt by Mayor Goodnight.

He sent the Sheriff to Goodnight’s office with a message.  “If you don’t come with me over to the judge’s chamber,” Goodnight quoted the Sheriff as saying, “we’re going to take you to jail.”

Through a spokesperson the judge said he can’t comment on the record.  His contempt order says the mayor blocked access to the courthouse and says it was “intentional and done solely for the purpose of disrupting the regular proceedings of the court.”

The judge ordered that Goodnight be sent to jail but before he arrived there in a sheriff’s department van, the construction materials were moved.

Masson raises a key legal issue:  "Wouldn’t that be, at best, indirect contempt, requiring the court to provide due process, including appointment of a special judge, before threatening to incarcerate the mayor? (See IC 34-47-3)."

Yep, it would certainly appear to be.  I would add that Judge Menges had also become personally involved in the dispute.  He had no business whatsoever presiding over the contempt proceedings. A special judge should have been appointed.  Judges should not rule in indirect contempt cases where they could themselves be a witness to the contempt.   And they most certainly should never preside over cases when they are angry.  When a judge finds himself or herself getting angry, the judge should voluntarily step down from the case.

Masson raises some other excellent questions that he suggests would be a "good exercise for a law school exam!"  Indeed.

But here is part of the WISH-TV story that I find the most troubling:
Judge Menges also threatened a Kokomo newspaper reporter with contempt Tuesday.  The reporter declined comment.

Two years ago the judge found a woman in contempt of court for having a noisy baby in the courtroom, and in 2011, he made headlines by issuing a court order instructing the county auditor to pay for the new copy machine he wanted.
The facts regarding the reporter need to be made public.  That and the other incidents raise the distinct possibility that the Goodnight contempt matter might not just be a one time situation in which Judge Menges displayed extremely poor judgment and abused his contempt authority.  Rather, it appears to be a pattern of abusing power that suggests Judge Menges may well not have the temperament to be a judge.

While Mayor Goodnight talks possible legal action, I would imagine he will also end up filing a  complaint with the Indiana Judicial Qualifications Commission, the body that disciplines the state's judges. Given Judge Menges pattern of conduct, it may well be a complaint that is found to have merit.

Tuesday, August 19, 2014

Annual Fee for Indiana Attorneys to Increase By 25%; Points to Need for New Chief Justice to Examine Operations of Judicial Agencies Funded by Fee

In an order handed down by the Indiana Supreme Court last month, it was announced that the annual attorney fee for active licenses would increase by 25% from $145 to $180.  These fees go to fund the operation of the Indiana Supreme Court Disciplinary Commission, Judges and Lawyers Assistance Program and the Commission for Continuing Legal Education.  Other fees that also fund those judicial agencies are seeing a similar increase.

Officials immediately patted themselves on the back for having a low attorney annual fee compared to other states. The Indiana Lawyer reports:
Jim Dimos, President,
Indiana State Bar Association
Regarding fees compared to other states, “Indiana is so low that whether we’re counted as lowest or second-lowest is negligible,” [Supreme Court spokeswoman Kathryn] Dolan said. That analysis is tricky, though, she said, because some states include mandatory state bar fees or other fees that Indiana doesn’t.

Even among voluntary bar states, Indiana’s fees are below average, Dolan said. Indiana State Bar Association President Jim Dimos said increases are never popular, but the registration dues remain low compared to states that don’t include mandatory bar fees.

“From our experience at the state bar, the court seems to administer things relatively modestly,” Dimos said. “While no one’s happy about paying more fees, we’re confident the court thought long and hard about this and believes they need these resources to continue to provide services to lawyers in the state of Indiana.”
Of course, none of this praise addresses much needed questions that need to be asked about why the operating costs of these judicial agencies have increased so much as to require a 25% increase even though inflation has been negligible since the last increase in 2011.

I can give Dolan a pass.  She's just a spokeswoman doing her job.  However, you would think Dimos, as President of the Indiana State Bar Association, might actually stand up for the attorneys his organization represents and question the need for such a large increase while many attorneys, especially younger attorneys saddled by huge law school bills, are struggling financially.  Not unexpectedly though, the bar association once again fails to advocate for attorneys, which is exactly why so many attorneys don't join the association.

Let me do Dimos' job for him.  The problem is that these judicial agencies, in particular the Disciplinary Commission have not controlled their costs and prioritized their activities.  This past year we have witnessed the Commission spending enormous amounts of money in zealous, overreaching efforts to pursue attorneys on minor violations unrelated to protecting the public from dishonest attorneys.  Meanwhile attorneys who have committed extremely serious ethical lapses or even are convicted off felonies, go unpunished by the Commission of have their prosecutions delayed for months if not years.

This is a fact I know all too well.  The Disciplinary Commission spent over $20,000 in their extremely aggressive prosecution of me for criticizing a judge in an email.  That's the entire disciplinary fees paid by 142 attorneys.  And that figure is expenses only, i.e. it does not count the salaries of the attorneys and scores of employees at the Commission who worked on my case.  My prosecution wasn't about my being an unethical attorney.  It was a prosecution that was filed and zealously pursued because I had publicly criticized the Commission on my blog, including Executive Secretary Michael Witte. During later filings, the Commission all but admitted that fact when it asked for a one year suspension for me in part because I had publicly criticized the Commission on my blog.

I'd like to say the way my prosecution was pursued was unique.  But repeatedly we have seen a Disciplinary Commission exercise such poor judgment in the prosecutions the Commission chooses to pursue and how those prosecutions are pursued, that the Commission has drawn editorial criticism of legal blogs and scholars across the country.  Even non-legal publications have written critically of the activities of the Commission.

Chief Justice Loretta Rush
Yesterday we saw the swearing in of a new chief justice, Loretta Rush of Lafayette.  As reported by Indiana Politics, Chief Justice Rush identified reform in Marion County of the small claims courts and judicial selection process as goals of her new administration.  I applaud that much needed focus of reform efforts and have written about those subjects several times.  I hope too that she will take a close and comprehensive look at the operations various judicial agencies for which the Indiana Supreme Court is responsible.  The operations of the Disciplinary Commission in particular need to be reviewed and major reforms instituted, reforms that help the Commission reprioritize so its primary task is protecting the public from dishonest attorneys.  There also needs to be much more transparency in the disciplinary process.

Most importantly attorneys need to have the opportunity to provide feedback about their experiences with the Commission to the Chief Justice in a confidential manner.  Right now attorneys across the State are fearful that if they dare publicly criticize the Commission, and virtually every attorney does privately, they will become on the Commission's radar and have their legal careers jeopardized.  As someone who has experienced the wrath of the Commission for speaking out publicly against it, I know that retaliation from the Commission is a real possibility for any attorney taking the route I did of speaking out about the need for reform in the disciplinary process.