How Many Indiana Attorneys Knew About Misconduct by Schererville Judge And Remained Silent for Fear of Being Disciplined for Reporting?

Last week, the Indiana Supreme Court handed down a decision involving former Schererville judge Deborah A. Riga Gardner.   The Court sets forth the facts of what is strikingly similar, though on a much smaller scale, to the Pennsylvania "Kids for Cash" scandal:

Stipulated Facts: From January 2000 to December 2003, Respondent served as Schererville Town Court Judge, where she heard cases involving traffic, minor drug and alcohol offenses, and small claims.

Driving Classes. In general, defendants charged with first-time traffic offenses could have their prosecution deferred if they took a defensive driving course. From January 2000 until October 2001, the driving courses were offered in Respondent's courtroom one Saturday each month, and each participant was required to pay a $25 fee to the driving school and a $114 fee to the Town of Schererville ("Town"). The driving school paid rent of $250 to the Town for each class held in the courtroom. Profits from the driving school went to the owner of the driving school.

In October 2001, Respondent created her own business called Diversified Educational Services ("DES") which offered the defensive driving courses. Respondent's father contracted with W.S.1 to open a checking account in the name of DES, which Respondent and her father controlled. Respondent directed that the fees collected from defendants that she ordered to attend the driving school be deposited into the DES account. Between November 2001 and December 2003, people attending DES driving school paid fees totaling $29,600. W.S. was shown as the sole owner of the account to conceal Respondent's financial interest in DES. Respondent paid W.S. $3,800 from the DES account for his cooperation. Respondent did not disclose her financial interest in DES to the Town or to defendants charged with traffic offenses in her court.

In December 2001, Respondent stopped paying rent to the Town for DES's use of the courtroom for the driving classes. Between December 2001 and December 2003, DES conducted sixteen driving school classes for which no rent was paid to the Town.

Counseling Program. In general, young adults who were charged in the Schererville Town Court for the first time with minor alcohol or marijuana offenses were ordered by Respondent to participate in a counseling session called "Crossroads." When the defendants completed the counseling and supervision requirements, the case would be dismissed.

From March 2001 through November 2001, the Crossroads counseling sessions were conducted by Addiction and Family Care, Inc. ("AFC"). The people attending the Crossroads sessions were required to pay $80 to AFC. The sessions were offered about once a month on a Saturday in the Schererville Town Court. Respondent required AFC to pay $150 rent per session to the Town for use of the courtroom. The profits from the program went to AFC owner N.F.

In December 2001, Respondent terminated the contract with AFC and assumed ownership of the Crossroads program the following month. Concealing her financial interest in Crossroads, Respondent continued to use the counselor who previously conducted the Crossroads sessions by AFC and continued to issue certificates of completion signed by N.F.

Between January 2002 and December 2003, twelve Crossroads sessions were held for approximately 175 defendants. Approximately $14,320 was collected from these defendants and deposited in Respondent's DES account. Respondent did not pay rent to the Town for the use of her courtroom for any of these Crossroads sessions.

Criminal Conviction. Respondent was charged on August 5, 2004, with several federal crimes based on actions while she served as a town judge. On June 12, 2006, the court accepted Respondent's guilty plea to four counts of "Mail Fraud for the Purpose of Executing a Scheme and Artifice to Defraud, Aiding and Abetting," in violation of 18 U.S.C. §§ 1341 and 1346. The district court delayed the sentencing to allow her to cooperate with the government and testify against another defendant on public corruption charges. On July 10, 2008, the district court sentenced her to concurrent 15-month sentences on each of the four counts, ordered her to pay restitution of $5,770.39 to the Town, and $6,350 to the State of Indiana-Lake County, and dismissed the remaining charges.

Based on these convictions, the Court entered an order of interim suspension on September 4, 2008, which is still in effect. See Matter of Riga, 894 N.E.2d 563 (Ind. 2008).

I would bet anything that attorneys who practice in Schererville knew all about what was happening in the judge's courtroom for almost four years.  Attorneys, because of their position within the legal system, are the primary and often the only individuals in a position to blow the whistle on judicial misconduct.

According to my research, Indiana is the most aggressive state in the country when it comes to sanctioning attorneys under Rule 8.2 for criticizing or accusing judges of misconduct.  Indiana led the way in concluding that attorneys do not have First Amendment rights to criticize judges because the state's interest overrides constitutional protection.  In laying the groundwork for this theory, the Indiana Supreme Court in the case Matter of Terry, 394 N.E.2d 94, 95-96 (1979) stated:

Professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations.

 ...

In the present case, the Respondent is charged with making false accusations against a Judge. This prohibition touches the very core of the judicial process. Unwarranted public suggestion by an attorney that a judicial officer is motivated by criminal purposes and considerations does nothing but weaken and erode the public's confidence in an impartial adjudicatory process.

With the groundwork laid in Terry, Indiana has been the most aggressive state in the country when it comes to enforcing Rule 8.2, the rule that purports to limit judicial criticism by attorneys.  But the problem is there is no evidentiary support behind the Terry conclusion - namely that the public is benefited by sharp, and undoubtedly unconstitutional, restrictions on attorneys' criticism of judges through the aggressive enforcement of disciplinary rules.  In Bridges v. California, 314 U.S. 252-270-271 (1941), the United States Supreme Court decades earlier rejected the Terry theory that the public is served by protecting judges from criticism:

For these reasons we are convinced that the judgments below result in a curtailment of expression that cannot be dismissed as insignificant. If they can be justified at all, it must be in terms of some serious substantive evil which they are designed to avert. The substantive evil here sought to be averted has been variously described below. It appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.

Although Bridges dealt with the media publishing judicial criticism of a pending case, the notion that limiting attorney speech because attorneys are more likely to be believed by the public on matters relating to the judicial branch was considered and rejected by Justice Kennedy in Gentile v. State Bar of Nevada, 501 US 1030, 1056-1057 (U.S. 1991)

To the extent the press and public rely upon attorneys for information because attorneys are well informed, this may prove the value to the public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent

The premise that sharp limitations on attorney criticism of judges protects the public is an assumption used to support Rule 8.2 discipline.  However, I have never seen a court anywhere try to actually point to any evidence, direct or circumstantial, that in any way proves the public is served by limiting attorney criticism of judges beyond the limits that apply to any other public official.

To the converse, it is clear that the public is indeed harmed when attorneys are fearful of speaking out against judicial criticism.  Following the Pennsylvania "Kids for Cash" scandal an investigating committee  found that numerous attorneys in Luzerne County knew that two judges there were sentencing juveniles to two private correctional facilities and getting kickbacks.  Yet they remained silent.  As I reported on these pages, the reason is undoubtedly that just a few years earlier, the Pennsylvania Supreme Court suspended two attorneys for five years and disbarred another attorney all for accusing Pennsylvania county judges of misconduct.

How many Indiana attorneys knew about problems in the Schererville court and remained silent?  How many attorneys knew about problems in the Marion County Superior Court run by Judge Kim Brown and remained silent?   The public was harmed by problems that lasted for years longer than they otherwise would have if attorneys would not have been fearful of speaking out. Indiana's chilling of attorney free speech has real consequences that harm the public.

Pennsylvania Supreme Court Silenced Attorney Whistleblowers Who Could Have Reported "Kids for Cash" Judicial Scandal

The New York Time details what is certainly the biggest judicial scandal in Pennsylvania history:

Things were different in the Luzerne County juvenile courtroom, and everyone knew it. Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt. Lawyers told families not to bother hiring them. They would not be allowed to speak anyway. 

Judge Mark Ciavarella

“The judge’s whim is all that mattered in that courtroom,” said Marsha Levick, the legal director of the Juvenile Law Center, a child advocacy organization in Philadelphia, which began raising concerns about the court to state authorities in 1999. “The law was basically irrelevant.”

Last month, the law caught up with Judge Mark A. Ciavarella Jr., 58, who ran that juvenile court for 12 years, and Judge Michael T. Conahan, 56, a colleague on the county’s Court of Common Pleas. 

In what authorities are calling the biggest legal scandal in state history, the two judges pleaded guilty to tax evasion and wire fraud in a scheme that involved sending thousands of juveniles to two private detention centers in exchange for $2.6 million in kickbacks.

Following the revelation of the scandal, the Interbranch Commission on Juvenile Justice was commissioned by an act of the Pennsylvania General Assembly with the support of the governor to investigate the scandal.  The 11 member commission, which had four appointed by the Chief Justice, three by the Governor and four by the leadership of the House and Senate, authorized nvestigate circumstances that led to corruption in the juvenile court of Luzerne County resulting in federal criminal charges against two judges, to restore public confidence in the administration of justice and to prevent similar events from occurring there or elsewhere in the Commonwealth.

During the hearings, Commission members questioned why attorneys had remained silent when they knew about problems in Judge Ciavarella's court.  A summary of the final report included a finding that attorneys had remained silent and that they should be reminded of their ethical responsibilities to speak out about judicial misconduct:

• Ensure that judges and lawyers are aware of their ethical responsibility to report misconduct, and develop educational materials so the general public is aware of how to report judicial misconduct. 

The final report criticized attorneys for not fulfilling their ethical obligation to report judicial misconduct and chided the Disciplinary Board for not prosecuting attorneys for not reporting such misconduct.

Perhaps not surprisingly since the 11 member panel was made up of four appointees from the Pennsylvania Chief Justice that another reason for attorneys not speaking out was not considered.  That reason was that the Pennsylvania Supreme Court had in the years leading up to the "Kids for Cash" scandal took away the licenses of attorneys who had publicly claimed judges had engaged in misconduct.  Attorneys in Pennsylvania had received a very loud and clear message from the Pennsylvania Supreme Court that if they engaged in whistleblowing they could well lose their license.

Judge Michael Conahan

In 1999, Attorney Neil Warner Price was charged with misconduct for accusing a judge had engaged in impropriety in a criminal case he was personally involved in.  In giving Price a five year suspension, the Pennsylvania Supreme Court said that he had not met the steep burden of proving the accusations were true and had instead "relied on rumors innuendo and his own perceptions" and that "the vast amount of documentary evidence [Price] presented did not support his claims."


In 2000, Attorney Robert Surrick was charged for alleging that a judge had been motivated by political influence and that "outside intervention" was the only explanation for a negative ruling on a foreclosure matter with which he was personally involved.  In that case, the Pennsylvania Supreme Court rejected Surrick's defense that he believed his allegation to be true and instead employed a "reasonable lawyer" standard for measuring whether Surrick had engaged in misconduct under Disciplinary Rule 8.2, the rule governing attorney criticism of judges.  The "reasonable lawyer" standard is considered the most strict standard that has been used by some states in enforcing Disciplinary Rule 8.2, governing attorney criticism of judges, i.e. states with a "reasonable lawyer" approach to Rule 8.2 broaden the number of attorneys who can be sanctioned for criticizing judges.  Surrick was given a five year suspension.

In 2006, the Pennsylvania Supreme Court dealt with a disciplinary matter involving attorney Eugene Andrew Wrona who had accused a Lehigh County Judge William Ford of misconduct in the handling of a child support matter.  In particular, Wrona alleged in a letter to the presiding judge of the county, a motion for disqualification and in a later press release posted on the website of The Center for Children's Justice - Pennsylvania Chapter, that Judge Ford had helped suborn perjury by participating in or allowing staff members to alter audio tapes of the hearing to remove a false statement witness.  The Pennsylvania Supreme Court found that it was not enough that Wrona believed the allegations to be true.  The court found Wrona had failed to prove his allegations and that "the general public is well-served" by Wrona's disbarment.

Given the three cases involving two five year suspensions and a disbarment all for speaking out about Pennsylvania county court judges, it is not surprising that that Pennsylvania attorneys chose not to say anything rather than accuse Luzerne County judges Mark A. Ciavarella Jr. and Michael Conahan of misconduct in the "Cash for Kids" kickback scheme.  Any attorney who dared to lodge such allegations faced the real possibility they would lose their license.  Should any of those attorneys dared to take that risk, that attorney would have faced a shifting burden of proof that placed the responsibility of proving substantial details of the kickback scheme.  Even if the attorney can successfully prove that off, he might still have to spend a year or more defending himself against disciplinary charges that damage his reputation and cost him a small fortune.  Most attorneys would choose to remain silent in the face of possible judicial misconduct than pay off.

In imposing the lowest threshold for discipline (the "reasonable lawyer" standard) in enforcing Rule 8.2, the Pennsylvania Supreme Court chilled attorney free speech and slammed the door on lawyers who might have otherwise blown the whistle on the outrageous judicial misconduct in Luzerne County.  In its harsh sanctions of attorneys who accused judges of misconduct, the Pennsylvania Supreme Court was not acting to protect the public but instead to protect their colleagues from criticism they considered unseemly.  The public - including countless families and hundreds of children - paid a hefty price for the Court's silencing of attorney free speech.